The NRC has received a petition for rulemaking dated March 24, 2008, submitted by the Natural Resources Defense Council (petitioner). The petitioner requests that the NRC amend 10 CFR part 50, “Domestic Licensing of Production and Utilization Facilities;” 10 CFR part 70, “Domestic Licensing of Special Nuclear Material” and other applicable regulations. Specifically, the petitioner requests that 10 CFR 50.64, “Limitations on the use of highly enriched uranium (HEU) in domestic non-power reactors” and portions of Part 70 that govern licensing of production of calibration or reference sources be amended to establish a date when the NRC will no longer license the civilian use of HEU. The petitioner also requests that applicable regulations governing export of HEU be amended to establish a time table to prohibit further transport and use of HEU.

The NRC has determined that the petition meets the threshold sufficiency requirements for a petition for rulemaking under 10 CFR 2.802. The petition was docketed by the NRC as PRM-50-90 on April 1, 2008. The NRC is soliciting public comment on the petition for rulemaking.

The petitioner requests that the NRC establish a date to no longer license the civilian use of HEU. The petitioner states that the basis for this request is bolstered by an article written by Thomas B. Cochran and Matthew G. McKinzie, “Detecting Nuclear Smuggling,” that appears in the April 2008 edition of Scientific American magazine. The petitioner states that the NRC should not license civilian use of HEU after December 31, 2009 (or an alternative date) except for use as reactor fuel at the MITR-II facility at the Massachusetts Institute of Technology (MIT), the Heavy Water Test Reactor at the National Institute of Standards and Technology (NIST), and the MURR facility at the University of Missouri. The petitioner also states that these facilities should be required to work with the NRC to establish dates when these reactors must be converted to low enriched uranium (LEU) fuel and report annually to NRC the progress toward fuel conversion.

The petitioner also requests that the NRC establish a date when HEU can no longer be exported, citing the export of HEU to licensees in Canada for Mo-99/Tc-99m medical isotope production during the past five years. The petitioner states that a ban on the NRC-licensed civilian use and export of HEU should apply to all facilities except for blending down of existing HEU to LEU fuel for civilian power reactors and to lower concentrations (20 to 40 percent U-235) of HEU for use at the MIT, NIST, and MURR facilities. The petitioner also states that HEU used for weapons and naval propulsion reactor fuel, spent fuel and radioactive waste regulated by 10 CFR part 72, the use of HEU under exemptions in §§ 70.11-70.17, and small quantities for production of calibration or references sources covered under §§ 70.19 and 70.20 should remain exempt from the proposed amendment.

The petitioner believes its proposed amendment will establish “an urgently needed precedent that HEU is simply too dangerous for continued commercial use.” The petitioner also states that other countries will not likely ban civilian use of HEU as long as similar use of HEU is permitted in the U.S. and would signal other countries “the imperative of eliminating vulnerable sources of HEU.” The petitioner further states that eliminating civilian HEU use is absolutely necessary because the greatest threat to the U.S. is the risk that terrorists will use HEU to make an improvised nuclear explosive device.

The petitioner notes that it is very easy to construct an improvised nuclear explosive device with HEU in sufficient quantities and that assembly instructions for these devices are widely available by computer. The petitioner states that a one-kiloton surface burst from a nuclear explosion can produce comparable casualties at some U.S. locations as the 21-kiloton airburst over Nagasaki, Japan during World War II. The petitioner is also concerned that HEU cannot be reliably detected by radiation portal monitors currently used at ports and other border crossings, and that monitors are useless if bypassed in noting that millions of illegal aliens and much contraband have entered the U.S. The petitioner states that eliminating HEU at its source should be this country's highest priority because of the high national security risk and that existing Federal programs are moving far too slowly to combat the threat.

The petitioner also notes that no commercial U.S. power reactors use HEU fuel and that no future plans to use HEU in NRC-licensed power facilities exist. The petitioner further states that NRC continues to license the civilian use of HEU to fuel seven existing research and test reactors that have not converted to LEU fuel yet, citing the NRC-licensed BWXT Lynchburg Technology Center that manufactures reactor fuel for several of these reactors. The petitioner is not aware of any other civilian use of HEU other than for the export to Canada for use in producing Molybdenum-99 (Mo-99) for Technetium-99m (Tc-99m) production, the most widely used medical isotope.

The petitioner states that 10 CFR 50.64 prohibits continued use of HEU fuel in domestic non-power reactors if an LEU fuel alternative is available. The petitioner estimates that the three HEU-fueled TRIGA-type research reactors at Oregon State University, the University of Wisconsin and Washington State University, will be converted to LEU during the next two years. The petitioner also notes that the MIST, NIST, and MURR facilities are working with the Department of Energy (DOE) to develop LEU alternatives but is skeptical that DOE's estimate to convert these facilities will occur by 2014. The petitioner does not know if the only other facility in the U.S., a small (100 megawatt-thermal) Nuclear Test Reactor (NTR) at General Electric's Vallectios Nuclear Center used for radiography is scheduled for conversion but notes that the newer and larger LEU-fueled TRIGA facility at the McClellan Nuclear Radiation Center is also used for radiography.

The petitioner notes that the NTR is a joint venture of General Electric Company (GE) and Hitachi and has been permitted to continue to operate on HEU fuel by annually certifying to the NRC that DOE does not have the funding for conversion to LEU. The petitioner states that because GE and Hitachi can afford to promptly convert the NTR to LEU fuel without Federal support, the NTR should be shut down before it is refueled if these firms believe the conversion is not worth the investment. The petitioner also notes that NRC has authorized a two to three year supply of HEU for export to Canada for Mo-99/Tc-99m medical isotope production. The petitioner suggests that the Canadian firm, MDS Nordion, that extracts the Mo-99/Tc-99m from the HEU could use LEU material because at least two other Mo-99 producers have been doing so “for more than 30 years.” Although MDS Nordion would incur an additional expense associated with the conversion, the petitioner believes it would be “a small price to pay for the elimination of HEU.”

The petitioner does not believe that establishing a firm date for ending civilian use of HEU will be detrimental to medical isotope production. However, the petitioner suggests that the NRC could authorize use of 20 to 40 percent-enriched HEU for a limited time if evidence is presented that complete elimination of HEU would not be practical for the MURR and MDC Nordion facilities. The petitioner states that a “reduction from 93.5 percent enriched-HEU to 40 percent would only increase the target material requirement for Mo-99 production by a factor of about 2.3.” The petitioner also states that approximately four times more 40 percent-enriched HEU would be required to make a one-kiloton improvised nuclear explosive device than using 93.5 percent enriched-HEU.

The petitioner concludes that because there is no known civilian use of HEU, including use as reactor fuel or for medical isotope production, that cannot be performed by using LEU, and that the high national security risks of HEU use clearly outweigh the benefits, the NRC should no longer license the civilian use and export of HEU.

The petitioner requests that the NRC conduct a rulemaking to establish the proposed amendments as detailed in this petition for rulemaking.

The proposed rule would define the term ‘marine debris' for purposes of the Marine Debris Research, Prevention, and Reduction Act (the Act). The definition was developed jointly by the National Oceanic and Atmospheric Administration (NOAA) and the United States Coast Guard (Coast Guard), in consultation with the Interagency Marine Debris Coordinating Committee (IMDCC).

The proposed rule defining marine debris states: “For the purposes of the Marine Debris Research, Prevention, and Reduction Act (33 U.S.C. 1951-1958 (2006)) only, marine debris is defined as any persistent solid material that is manufactured or processed and directly or indirectly, intentionally or unintentionally, disposed of or abandoned into the marine environment or the Great Lakes.”

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. The Coast Guard has an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

If you submit a comment, please include the docket number for this rulemaking (USCG-2007-0164), indicate the specific section of this document to which each comment applies, and give the reason for each comment. The Coast Guard recommends that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that the Coast Guard can contact you if they have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. The Coast Guard and NOAA will consider all comments and material received during the comment period. They may change this proposed rule in view of them.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov at any time, click on “Search for Dockets,” and enter the docket number for this rulemaking (USCG-2007-0164) in the Docket ID box, and click enter.

Anyone can search the electronic form of all comments received into the docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

The Coast Guard and NOAA do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The quantity of marine debris has increased over the years in spite of both domestic and international efforts to minimize it. As society develops new uses for materials, in particular plastics, the variety and quantity of items found in the marine environment has increased dramatically. These products range from common domestic material (e.g. bags, cups, bottles, balloons) to industrial products (e.g. strapping bands, plastic sheeting, hard hats, resin pellets) to lost or discarded fishing gear (e.g. nets, buoys, traps, lines, light sticks). Modern fishing gear (e.g. nets, lines, pots, and other recreational or commercial fishing equipment) is generally made of synthetic materials and metal, and can persist when disposed of, abandoned, or discarded in the marine environment.

In 2005, Congress instructed NOAA to create a centralized program within the agency to coordinate existing activities related to marine debris and to develop effective strategies for research, prevention, and reduction of marine debris. Subsequently, in 2006, Congress passed the Marine Debris Research, Prevention, and Reduction Act (the Act) (33 U.S.C. 1951-1958 (2006)), the purposes of which include to identify, determine the sources of, assess, reduce, and prevent marine debris and its adverse impacts on the marine environment and navigation safety. The Act also reactivated the Interagency Marine Debris Coordinating Committee (IMDCC), an interagency Federal body responsible for developing and recommending comprehensive and multi-disciplinary approaches to reduce the sources and impacts of marine debris to the nation's marine environment, natural resources, public safety, and economy. The IMDCC meets quarterly to ensure coordination of research, monitoring, education, and regulatory actions addressing the persistent marine debris problem. The Act requires NOAA and the Coast Guard to consult with the IMDCC on the development of this proposed definition of marine debris. Furthermore, the Act requires NOAA to develop a federal marine debris clearinghouse to make accessible the most recent information on marine debris including prevention and reduction strategies, literature on marine debris impacts, and outreach and education material for multiple audiences.

The Act makes permanent a Marine Debris Prevention and Removal Program within NOAA (NOAA Program) which, among other things, is aimed at reducing and preventing the occurrence and adverse impacts of marine debris on the marine environment and navigational safety. The NOAA Program includes mapping, identification, impact assessment, removal, and prevention of marine debris with a focus on threats to living marine resources including commercial fisheries, species protected under the Endangered Species Act and Marine Mammal Protection Act, and the habitat upon which they depend. The NOAA Program is also intended to include use of non-regulatory approaches to reduce and prevent the loss of fishing gear, including the development of local or regional protocols for lost gear reduction and prevention. Such measures could include new gear technology, incentives to reduce the risk of lost gear, outreach and education, and other non-regulatory measures to cooperatively minimize the volume of lost and discarded fishing gear and to aid in its recovery. The Act authorizes NOAA to provide grants to entities whose activities affect research or regulation of marine debris and entities with expertise in a field related to marine debris.

The Act requires the Coast Guard to enforce the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the 1978 Protocol (MARPOL 73/78), Annex V and the Act to Prevent Pollution from Ships, 33 U.S.C. 1901-1915 (1996). The Coast Guard will continue to monitor and enforce the requirements of these acts among the appropriate regulated industries and communities. The Coast Guard also intends to maintain its voluntary reporting program, to report damage to vessels and disruption to navigation caused by marine debris and increase international cooperation to reduce marine debris. The Act also requires the Coast Guard to submit to Congress a report evaluating the Coast Guard's progress on these initiatives. In addition, the Act requires the Coast Guard to obtain a report from the National Research Council on the effectiveness of international and domestic measures to prevent and reduce marine debris and its impacts. The Coast Guard is actively working to fulfill these requirements.

The Act requires NOAA and the Coast Guard, in consultation with the IMDCC, to “jointly develop and promulgate through regulations a definition of the term ‘marine debris', [f]or the purposes of the Act.” 33 U.S.C. 1954(b)(2006). The Act expressly limits the application of the definition of marine debris to the implementation and requirements of the Act. The Act does not authorize NOAA or the Coast Guard to undertake regulatory actions other than the promulgation of this definition, and the proposed definition of marine debris does not affect the regulatory or management activities of other federal agencies.

NOAA and the Coast Guard worked together to develop the proposed definition and considered both agencies' responsibilities under the Act when developing the proposed definition. NOAA and the Coast Guard are committed to continuing to work together to jointly develop any future revisions of the definition of marine debris for the purposes of the Act.

Generally, the term “marine debris” has a variety of meanings to the many entities working in and affecting the marine environment. The proposed definition, however, focuses on solid debris from both land-based and ocean-based sources and its adverse impacts on the marine environment and navigation safety. While alternative definitions were considered, the proposed definition would allow NOAA to consider the broadest possible range of marine debris projects for funding pursuant to the Act while providing the Coast Guard sufficient parameters to conduct useful and focused studies and reports required by the Act.

As required by the Act, NOAA and the Coast Guard consulted with the IMDCC during the development of the definition of marine debris in this proposed rule. Among the comments received from IMDCC members was a suggestion to include the phrase “unauthorized” in the definition in order to exclude those materials explicitly permitted to be discharged into the marine environment.

NOAA and the Coast Guard decided not to include the term “unauthorized” in the proposed definition because it would inappropriately narrow the definition. Such a limited definition would be inconsistent with the objectives of the Act, which are to identify, determine the sources of, assess, reduce, and prevent the full range of marine debris and its adverse effects on the marine environment and navigation safety. Several laws, such as the Act to Prevent Pollution from Ships, and the Ocean Dumping Act, allow the discharge, disposal or placement of persistent material into the ocean that could be considered “marine debris” as defined in this regulation. Authorities to dispose of or abandon material that is otherwise authorized by law, and may be considered marine debris as defined in this regulation, are not prohibited from disposal or otherwise affected by the programs implemented pursuant to the Act or the promulgation of this definition.

Some IMDCC members also commented that the definition of marine debris should be limited to debris with adverse effects on the marine environment. NOAA and the Coast Guard chose not to include this limitation because it would restrict opportunities to conduct research projects where the adverse impacts of marine debris are already known to be harmful and limit opportunities for conducting research where impacts are unknown or uncertain. Limiting the range of research opportunities in this way would diminish the ability of NOAA and the Coast Guard to fulfill the objectives of the Act.

Promulgation of this definition will help fulfill the requirements of the Act and define the scope of the NOAA and Coast Guard programs pursuant to the Act. The NOAA Program will meet the objectives of the Act through coordination with the Coast Guard, the IMDCC, other Federal agencies, across NOAA line offices, and through partnerships with State and local governments, non-governmental organizations, universities, and marine related industries, particularly the fishing industry and the Regional Fishery Management Councils. The implementation of the Act will contribute to accomplishing NOAA's mission to promote marine ecosystem health, commerce, and transportation.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analysis based on these statutes and executive orders.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard has considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The factual basis for this certification is set forth below.

Under 33 U.S.C. 1954, NOAA and the Coast Guard, in consultation with the Interagency Marine Debris Coordinating Committee (IMDCC), are required to promulgate jointly a definition of “marine debris” for the purposes of the Act. This proposed rule is relevant only to the scope and implementation of the NOAA and Coast Guard programs established by the Act and does not regulate any on-going activities. It serves only to define the scope of the grants and other cooperative funding that may be available through NOAA to federal and non-federal entities. The Coast Guard program provides for the Coast Guard to take certain actions in consultation with the IMDCC, pertaining to compliance with MARPOL Annex V and development and implementation of a plan to improve ship-board waste management, as well as actions to improve international cooperation to reduce marine debris and establish a voluntary marine debris reporting program for vessel operators. The NOAA program provides for NOAA, subject to available funding, to carry out activities with regard to the mapping, identification, impact assessment, removal and prevention of marine debris, as well as improve efforts to reduce and prevent the loss of fishing gear and outreach and education of the public. The Act further establishes a grant program administered by NOAA and makes funding opportunities available to non-federal entities, including private and public entities, to conduct activities that fulfill the requirements of the Act.

Therefore, the Coast Guard and NOAA certify under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment through one of the mechanisms listed in the ADDRESSES section. In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. If you are aware of voluntary consensus standards that might apply but are not listed, please identify them in a comment to the Docket Management Facility at the address under ADDRESSES and explain why they should be used.

The Coast Guard has analyzed this proposed rule under Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and NOAA has analyzed the proposed rule under NOAA Administrative Order 216-6, which sets forth NOAA's environmental review procedures for implementing NEPA. NOAA and the Coast Guard have made a preliminary determination this action is not likely to have a significant effect on the human environment.

A preliminary Coast Guard “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. This proposed rule has no expected direct, indirect or cumulative impacts for the purposes of NEPA and is not likely to have a significant effect on the human environment. The proposed rule does not regulate any on-going activities and serves only to define the scope of the grants and other cooperative funding that may be available through NOAA to federal and non-federal entities.

The clearance docket number for the Department of Commerce is: 070615197-7864-02.

For the reasons discussed in the preamble, NOAA proposes to add 15 CFR part 909 and the Coast Guard proposes to amend 33 CFR part 151 as follows:

1. 15 CFR part 909 is added to read as follows:

1. On April 21, 2008, the Commission issued a Notice of Proposed Rulemaking (NOPR) that proposes, inter alia, to approve interpretations of specific requirements of Commission-approved Reliability Standards submitted to the Commission for approval by the North American Electric Reliability Corporation (NERC). 1 Pursuant to section 215 of the Federal Power Act (FPA), 2 the Commission supplements the NOPR by proposing to approve NERC's modified interpretation of Reliability Standard BAL-005-0 (Automatic Generation Control), Requirement R17.

2. On December 19, 2007, NERC submitted for Commission approval interpretations of requirements in four Commission-approved Reliability Standards, including an interpretation of BAL-005-0, Requirement R17. 3 On April 15, 2008, NERC submitted a request to withdraw the interpretation of Requirement R17 and substitute a revised interpretation of the same requirement (referred to by NERC as “interpretation (b)”).

3. On April 21, 2008, the Commission issued a NOPR in this proceeding. In the NOPR, the Commission noted that NERC submitted a modified interpretation of BAL-005-0 on April 15, 2008. The Commission stated that it did not plan to act on the initial interpretation and would address “interpretation (b)” at a future time.

4. Requirement R17 of Reliability Standard BAL-005-0 obligates each balancing authority to “at least annually check and calibrate its time error and frequency devices against a common reference.” This is one aspect of ensuring the accurate calculation of area control error (ACE). Requirement R17 states that a balancing authority must adhere to minimum accuracies in terms of ranges for the following devices: Digital frequency transducer, voltage transducer, remote terminal unit, potential transformer, and current transformer.

5. NERC received a request for interpretation regarding the type and location of the equipment to which Requirement R17 applies. In response, a NERC task force developed, and the NERC board of trustees approved, interpretation (b), which provides that BAL-005-0, Requirement R17

6. The Commission proposes to approve NERC's interpretation (b) of BAL-005-0, Requirement R17. The Commission agrees that, as stated in interpretation (b), time error and frequency devices that serve as input into the reporting or compliance of the ACE equation, whether inside or outside the operations control room, must be annually checked and calibrated. In addition, the Commission notes that tie-line megawatt metering data is another important aspect of ensuring the accurate calculation of area control error (ACE), and interpretation (b) limits the specific accuracy requirements of Requirement R17 to frequency and time error measurement devices. We seek comment on whether interpretation (b): (1) Could decrease the accuracy of frequency and time-error measurements by not requiring calibration of tie-line megawatt metering devices; (2) what conditions would preclude the requirement to calibrate these devices; and (3) whether the accuracy of these devices is assured by other requirements within BAL-005-0 in the absence of calibration.

7. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due June 12, 2008, concurrent with the comment due date for the NOPR issued on April 21, 2008. Comments must refer to Docket No. RM08-7-000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.

8. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

9. Commenters that are not able to file comments electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426.

10. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

11. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( http://www.ferc.gov ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

12. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

13. User assistance is available for eLibrary and the FERC's Web site during normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or e-mail at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at public.referenceroom@ferc.gov.

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. CBP also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to CBP will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. See ADDRESSES above for information on how to submit comments.

Section 641 of the Tariff Act of 1930, as amended (19 U.S.C. 1641), provides that a person (an individual, corporation, association, or partnership) must hold a valid customs broker's license and permit in order to transact customs business on behalf of others. Section 641 also sets forth standards for the issuance of broker's licenses and permits, and provides for the taking of disciplinary action against brokers that have engaged in specified types of infractions. In the case of an applicant for an individual broker's license, § 641 states that the Secretary of the Treasury may conduct an examination to determine such applicant's qualifications for a license. Section 641 also authorizes the Secretary of the Treasury to prescribe rules and regulations relating to the customs business of brokers as necessary to protect importers and the revenue of the United States and to carry out the provisions of § 641.

On November 25, 2002, the President signed the Homeland Security Act of 2002, (6 U.S.C. 101 et seq., Public Law 107-296) (the “HSA”), establishing the Department of Homeland Security. Pursuant to § 403(1) of the HSA, the United States Customs Service was transferred from the Department of the Treasury to the Department of Homeland Security effective March 1, 2003. In addition, pursuant to § 1502 of the HSA, the “Customs Service” was renamed as the “Bureau of Customs and Border Protection.” Subsequently, on April 23, 2007, a Notice was published in the Federal Register (72 FR 20131) to inform the public that the name of the Bureau of Customs and Border Protection had been changed by the Department of Homeland Security to “U.S. Customs and Border Protection (CBP),” effective March 31, 2007.

Treasury Order No. 100-16 ( see Appendix to 19 CFR part 0) delegated to the Department of Homeland Security the authority to prescribe the rules and regulations relating to customs brokers.

The regulations issued under the authority of § 641 are set forth in part 111 of title 19 of the Code of Federal Regulations (19 CFR part 111). Part 111 includes detailed rules regarding the licensing of, and granting of permits to, persons desiring to transact customs business as customs brokers. These rules include the qualifications required of applicants and the procedures for applying for licenses and permits. Section 111.11 (19 CFR 111.11) sets forth the basic requirements for obtaining a broker's license. Paragraphs (a)(1) through (a)(4) of § 111.11 provide that, in order to obtain a customs broker's license, an individual must be: A citizen of the United States upon applying for the license and not an officer or employee of the United States; attain the age of 21 prior to the date of application for such license; be of good moral character; and, obtain a passing grade on the written examination within a 3-year period before submission of the application.

The regulations relating to the written examination for an individual customs broker's license are set forth in § 111.13 (19 CFR 111.13). Paragraph (b) of § 111.13, pertaining to the date and place of the examination, provides that an individual intending to take the examination must advise the appropriate port director in writing at least 30 calendar days prior to the scheduled examination date and remit the $200 examination fee prescribed in paragraph (a) of § 111.96. There are no additional requirements in § 111.13 that must be fulfilled in order for an individual to sit for the customs broker's license examination.

This document proposes to amend § 111.13 in order to more closely align the basic requirements an individual must satisfy in order to take the written examination for a broker's license with the basic requirements an individual must satisfy in order to actually obtain an individual broker's license. In order to be eligible to take the written examination under the proposed amendments, an individual would be required to be a citizen of the United States on the date of examination and not an officer or employee of the United States Government, and to attain the age of 21 prior to the date of examination. By more closely aligning the requirements for taking the examination with the requirements for obtaining a license, the proposed amendments would facilitate the overall licensing process by helping to ensure that those sitting for the examination are not automatically precluded from obtaining a license by reason of age, citizenship status, or employment. For example, under the current regulations, an individual could take and pass the examination but not be eligible to obtain a license because he or she has not attained the age of 21, is not a U.S. citizen, or is employed by the U.S. Government. The proposed amendments would prevent this from occurring and, as a result, such an individual would be spared the time and expense of preparing for and taking the examination. CBP would also benefit as the proposed rule would prevent unnecessary expenditures of resources in administering the examination with respect to individuals who are ineligible to obtain a license.

In addition, it is noted that limiting the examination to U.S. citizens is a reasonable security measure that conforms to the existing citizenship requirement for obtaining a license. Moreover, by barring U.S. Government employees from taking the examination, the proposed amendments would help to eliminate the appearance of any conflict of interest or unfair advantage that might be associated with their employment in connection with taking the examination.

This document also proposes non-substantive amendments to § 111.13(a), (c), and (e) to reflect the nomenclature changes effected by the transfer of CBP to the Department of Homeland Security.

Pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), it is certified that, if adopted, the proposed amendments will not have a significant economic impact on a substantial number of small entities because the proposed rule would merely result in more closely aligning the requirements for taking the written examination for an individual customs broker's license with the requirements for actually obtaining a customs broker's license. Accordingly, the proposed amendments are not subject to the regulatory analysis or other requirements of 5 U.S.C. 603 and 604. In addition, this document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

This document is being issued by CBP in accordance with § 0.1(b)(1) of the CBP regulations (19 CFR 0.1(b)(1)).

It is proposed to amend part 111 of title 19 of the Code of Federal Regulations (19 CFR part 111) as set forth below.

Temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend the Income Tax Regulations (26 CFR part 1) relating to section 367(b) of the Code and certain triangular reorganizations. The text of those regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the temporary regulations and the proposed regulations.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required.

It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. This certification is based on the fact that the regulations will primarily affect large multi-national corporations that engage in triangular reorganizations subject to the regulations. The regulations apply to triangular reorganizations, involving one or more foreign corporations, to the extent that, in connection with the reorganization, the acquiring corporation purchases, in exchange for property, all or a portion of the stock used to acquire the stock or assets of the target corporation. Therefore, the IRS and Treasury Department expect only a de minimis number of small business entities to be subject to the regulations. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register .

The principal author of these proposed regulations is Daniel McCall of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

President George W. Bush signed the Gulf of Mexico Energy Security Act of 2006 (GOMESA) into law on December 20, 2006 (Pub. L. No. 109-432, 120 Stat. 2922), as part of H.R. 6111, The Tax Relief and Health Care Act of 2006, which also extended several energy tax programs that encourage efficiency and conservation, as well as the production and use of renewable energy sources. With regard to the Gulf of Mexico (GOM) Outer Continental Shelf (OCS) provisions (Division C, Title 1, 120 Stat. 3000), GOMESA:

• Lifted the congressional moratorium on oil and gas leasing and development in a portion of the Central GOM and mandates lease sales in two areas of the GOM (the 181 Area and 181 South Area as defined by GOMESA) notwithstanding the omission of those two areas from any OCS leasing program under section 18 of the OCS Lands Act (43 U.S.C. 1344);

• Established a moratorium through June 30, 2022 in the vast majority of the Eastern Planning Area and a small portion of the Central Planning Area;

• Provided for the establishment of a process to exchange existing leases in the new moratorium areas for bonus or royalty credits that may only be used in the GOM; and

• Provided for the distribution of certain OCS revenues to the Gulf producing States of Alabama, Louisiana, Mississippi, and Texas, and to certain coastal political subdivisions within those States.

This proposed rule sets forth how the Department of the Interior plans to implement the GOMESA requirements related to the distribution of OCS revenues to the Gulf producing States and their coastal political subdivisions.

For each of the fiscal years from 2007 through 2016, GOMESA directs the Secretary of the Treasury to deposit 50 percent of qualified OCS revenues—bonuses, rents, and royalties—from OCS oil and gas leases in areas designated as the 181 Area in the Eastern Planning Area and the 181 South Area into a special account in the United States Treasury. The GOMESA directs the Secretary of the Interior, for each of these fiscal years, to disburse 25 percent of the revenues in the special account to the Land and Water Conservation Fund (LWCF) and the remaining 75 percent to the States of Alabama, Louisiana, Mississippi, and Texas (collectively identified as the “Gulf producing States”) and their eligible coastal political subdivisions. The revenues are to be allocated among the Gulf producing States based on their inverse proportional distance from the leases in the 181 Area in the Eastern Planning Area and the 181 South Area and in accordance with regulations established by the Secretary of the Interior. The GOMESA also provides that in determining the individual Gulf producing States' share of the qualified OCS revenues, no State, irrespective of the amount established by the application of the inverse proportional distance formula, shall receive less than 10 percent of the revenues to be disbursed.

The GOMESA directs the Secretary of the Interior to disburse 20 percent of the funds allocated to each Gulf producing State to political subdivisions within the State which are located in the State's coastal zone and are within 200 nautical miles of the geographic center of any OCS leased tract. Revenues are allocated to the coastal political subdivisions based on their population, miles of coastline, and their inverse proportional distance from designated leases in the 181 Area in the Eastern Planning Area.

The GOMESA requires that each Gulf producing State and coastal political subdivision use all amounts received for one or more of the following purposes:

• Projects and activities for the purposes of coastal protection, including conservation, coastal restoration, hurricane protection, and infrastructure directly affected by coastal wetland losses.

• Mitigation of damage to fish, wildlife, or natural resources.

• Implementation of a Federally-approved marine, coastal, or comprehensive conservation management plan.

• Mitigation of the impact of OCS activities through the funding of onshore infrastructure projects.

• Planning assistance and administrative costs not to exceed 3 percent of the amounts received.

The GOMESA establishes a separate revenue sharing provision to be implemented for fiscal year 2017 and thereafter. This proposed rule and the resulting final rule will apply to the fiscal years 2007 through 2016 time period only; the later period will be addressed in a subsequent rulemaking.

The following sections provide specific information on the applicable GOMESA provisions and how MMS proposes to implement them.

The MMS proposes, in some instances, to clarify the GOMESA definitions to make them more precise and consistent with MMS's existing leasing, financial, and accounting practices. The MMS also proposes to include additional definitions in the rule. The definitions we propose to add or to expand in order to clarify the meaning are discussed below. Other terms defined in proposed § 219.411 of the regulation have the exact same definition as stated in section 102 of GOMESA.

181 Area—adopted directly from section 102 of GOMESA.

181 Area in the Eastern Planning Area—is comprised of the area of overlap of the two geographic areas defined in GOMESA as the “181 Area” and the “Eastern Planning Area.” A map of the “181 Area in the Eastern Planning Area” can be found with publicly available information for GOM Eastern Sale 224 at: http://www.gomr.mms.gov/homepg/lsesale/224/egom224.html.

181 South Area—adopted from section 102 of GOMESA. Means any area located south of the 181 Area, west of the Military Mission Line and in the Central Planning Area. A map of the 181 South Area can be found with the Call for Information and Nominations, Central GOM Planning Area South of Sale 181 Area at: http://www.gomr.mms.gov/homepg/lsesale/208/cgom208.html.

Applicable Leased Tract—The term “applicable leased tract” means a tract that is subject to a lease under section 6 or 8 of the OCS Lands Act for the purpose of drilling for, developing, and producing oil or natural gas resources and is located fully or partially in either the 181 Area in the Eastern Planning Area or in the 181 South Area

Central Planning Area—adopted directly from Section 102 of GOMESA.

Coastal Political Subdivision—The term “coastal political subdivision” means a political subdivision of a Gulf producing State any part of which political subdivision is:

(a) Within the coastal zone (as defined in section 304 of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453)) of the Gulf producing State as of December 20, 2006; and

(b) Not more than 200 nautical miles from the geographic center of any leased tract.

The only difference between this definition and the GOMESA definition is that GOMESA refers to political subdivisions that were within the coastal zone of a Gulf producing State “as of the date of enactment of this Act.” The definition proposed for this rule would refer to the actual date GOMESA was enacted.

Coastline—The term “coastline” means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.

This is the definition of the coastline used in section 2 of the Submerged Lands Act (43 U.S.C. 1301) and refers to the same line as that established for use in the Coastal Impact Assistance Program (CIAP) by section 384 of the Energy Policy Act of 2005 (EPAct) codified at 43 U.S.C 1356a.

Distance—The term “distance” means the minimum great circle distance.

Eastern Planning Area—adopted directly from section 102 of GOMESA.

Gulf Producing State—adopted directly from section 102 of GOMESA.

Leased Tract—The term “leased tract” means a tract that is subject to a lease under section 6 or 8 of the OCS Lands Act for the purpose of drilling for, developing, and producing oil or natural gas resources.

Military Mission Line—adopted directly from section 102 of GOMESA.

(a) IN GENERAL—The term “qualified OCS revenues” means, in the case of each of fiscal years 2007 through 2016, all rentals, royalties, bonus bids, and other sums received by the United States from leases entered into on or after December 20, 2006, located in:

(1) The 181 Area in the Eastern Planning Area; and

(2) the 181 South Area.

(b) For applicable leased tracts intersected by the planning area administrative boundary line (e.g., separating the GOM Central Planning Area from the Eastern Planning Area), only the percent of revenues equivalent to the percent of surface acreage in the 181 Area in the Eastern Planning Area will be considered qualified OCS revenues.

(c) Exclusions—The term “qualified OCS revenues” does not include:

(1) Rental revenues or user fees credited to MMS appropriated funds through the annual Congressional appropriations process,

(2) Revenues from the forfeiture of a bond or other surety securing obligations other than royalties,

(3) Civil penalties, and

(4) Royalties taken by the Secretary in-kind and not sold.

The proposed definition of “qualified OCS revenues” includes several variations from the GOMESA definition. First, the GOMESA definition refers to “leases entered into on or after the date of enactment of this Act.” The definition proposed for this rule would refer to the actual date GOMESA was enacted.

Second, in paragraph (a)(1), consistent with the way MMS has interpreted a similar CIAP provision, MMS interprets the phrase “due and payable to” to mean “received by.” The GOMESA definition of qualified OCS revenues refers to “* * * all rentals, royalties, bonus bids, and other sums due and payable to the United States * * *,” which could imply that the revenues to be allocated to the Gulf producing States, coastal political subdivisions, and the LWCF for a given fiscal year would be the amounts owed by lessees for the payment of royalties in that fiscal year, whether or not the payments were actually received by MMS during that fiscal year. This interpretation, however, is not consistent with MMS's system of collecting and disbursing royalty revenues.

Royalties on oil and gas produced in 1 month are due and payable by the end of the following month, e.g., royalties on oil and gas produced in October must be paid by the end of November. The MMS does not calculate royalty amounts owed and bill payors; rather, MMS accepts the amounts payors report and pay subject to subsequent audit and other verification procedures.

Royalty payors frequently make adjustments to previous months' royalty payments as final data become available on sales, volumes, prices, and the amount of allowable transportation or processing deductions. The adjustments may result in payors paying additional royalties or, if previous royalties were overpaid, claiming a credit against their current royalty obligation. These adjustments may not occur until several months after the payment was originally due. As a result, payments made in 1 fiscal year may be adjusted in a subsequent fiscal year.

The value of these adjustments for the leases that are subject to the GOMESA revenue sharing provisions are not expected to be substantial and, further, will in any event, tend to balance out over time as both positive and negative adjustments are made from 1 fiscal year to the next. Attempting to track all the adjustments and account for them in the revenue allocation process would be labor intensive, prohibitively costly, and require an uneconomic use of scarce Federal resources. Consequently, for the purposes of this rule, MMS proposes to use all rentals, royalties, bonus bids, and other sums traditionally received and subsequently transferred to the Treasury General Fund Miscellaneous Receipt Account as a proxy for revenues due and payable.

With the passage of the GOMESA, qualified OCS revenues will be deposited into the Treasury General Fund Miscellaneous Receipt Account (50 percent Federal share) and the Treasury Special Account (50 percent LWCF-State-CPS share).

Third, in paragraph (c)(1), to maintain consistency with all rentals, royalties, bonus bids, and other sums traditionally received and subsequently transferred to the Treasury General Fund Miscellaneous Receipt Account, this definition of qualified OCS revenues excludes any rental revenues and cost recovery user fees that may be designated by Congress to MMS through the annual appropriations process. Since 1993, Congress has funded a significant part of MMS' operations with a portion of the OCS rental revenue receipts and cost recovery fees.

The fiscal year 2009 President's Budget proposed appropriation language allocates to MMS:

This reference to the receipts resulting from increases to rates in effect on August 5, 1993, provides a significant share of MMS appropriated funds. These receipts are retained by MMS to fund current operations.

The fiscal year 2009 President's Budget adds appropriations language confirming GOMESA qualified OCS revenues do not include Congress' appropriation of OCS rental receipts to MMS.

Additionally, payments made by owners of applicable leases for provision of special services are collected by MMS under the authority based on the direct cost of providing that service to the lessees, and are not considered receipts directly emerging from a lease's revenues themselves. These fees are collected by MMS under the authority of the Independent Office Appropriations Act and are consistent with the Office of Management and Budget's Circular A-25. This revenue also provides a significant share of MMS operating funds. For these reasons, rentals and cost recovery fees designated by Congress as part of MMS appropriations are not included as qualified OCS revenues.

Fourth, this definition of qualified OCS revenues omits GOMESA subparagraph § 102(9)(A)(ii), that defines qualified OCS revenues for the period 2017, and thereafter because the allocation of qualified OCS revenues during that period will be addressed in a regulation to be issued later.

Fifth, this definition of qualified OCS revenues omits GOMESA subparagraph § 102(9)(B)(ii) (revenues generated from leases subject to section 8(g) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(g)) since none of the applicable (GOMESA) leased tracts are within the so-called 8(g) zone.

Sixth, GOMESA excludes from the definition of qualified OCS revenues, revenues from the forfeiture of a bond or other surety securing obligations other than royalties, civil penalties, or royalties taken by the Secretary in-kind and not sold (which would include oil taken in-kind and transferred into the Strategic Petroleum Reserve).

Finally, for applicable leased tracts intersected by the planning area administrative boundary line (e.g., separating the GOM Central Planning Area from the Eastern Planning Area), only the percentage of revenues equal to the percentage of acreage in the 181 Area in the Eastern Planning Area will be considered qualified OCS revenues. This is consistent with the distribution of revenues from tracts only partially within the 8(g) zone. When a tract is only partially within the 8(g) zone, States receive 27 percent of a percentage of bonuses, rents, and royalties equal to the percentage of surface acreage within the 8(g) zone.

We believe these elements of the definitions are consistent with the intent of the GOMESA provisions and other applicable laws. We welcome your comments and suggestions on the definitions as proposed by MMS.

For the fiscal year 2007 through fiscal year 2016, GOMESA provides that 50 percent of qualified OCS revenues are to be placed in a special Treasury account from which the Secretary of the Interior shall disburse:

• 75 percent to the Gulf producing States (of which 20 percent would subsequently be allocated to local eligible coastal political subdivisions); and

• 25 percent to provide financial assistance to States in accordance with section 6 of the LWCF.

The GOMESA provides that qualified OCS revenues shall be allocated to each Gulf producing State in amounts that are inversely proportional to the respective distances between the point on the coastline of each Gulf producing State that is closest to the geographic center of the applicable leased tract and the geographic center of the leased tract. Implementation of this provision requires MMS to make three key sets of determinations:

• The points that are the geographic centers of each applicable leased tract;

• The point on the coastline of each Gulf producing State that is closest to the geographic center of each applicable leased tract; and

• The distances between the two points for each applicable leased tract.

Although the set of States and leases involved differs between the two programs, MMS proposes to use a similar methodology to calculate the distances between the Gulf producing States and the geographic center of the applicable leased tracts for GOMESA as it does for CIAP. Likewise, the formula and methodology MMS will use to calculate the Gulf producing States' shares of qualified OCS revenues is based on their inverse proportional distance from the applicable leased tracts, which is the same concept employed for the CIAP.

The GOMESA provides that in determining the individual Gulf producing States' share of the qualified OCS revenues, no State, irrespective of the amount established by the application of the inverse proportional distance formula, shall receive less than 10 percent of the revenues to be disbursed.

The following information describes how MMS proposes to calculate the distances between the Gulf producing States and coastal political subdivisions and applicable leased tracts which would be used in the inverse proportional distance calculations to allocate the qualified OCS revenues.

Determination of leased tract center points—From MMS databases, we will identify all applicable leased tracts (i.e., all blocks that were subject to an oil and gas lease either on the first or last day of the fiscal year) in the 181 Area located in the Eastern Planning Area and in the 181 South Area. The MMS will calculate, by mathematical methods, the geographic center of each leased tract in the two areas using standard accepted mapping software (ArcGIS). The center will be that location which provides a balancing point in two-dimensional space. If the leased tract is intersected by the planning area administrative boundary line (administrative boundary between the Central Planning Area and Eastern Planning Area), MMS will use the geographic center of the entire leased tract to calculate the inverse distance. In the unusual case where a lease is both awarded and relinquished between the first and last days of the same fiscal year, we count the lease revenues but not the lease's location in applying the distribution formula.

Determination of measurement points on State coastlines—According to the Submerged Lands Act (43 U.S.C. 1301), the term “coast line” means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. For purposes of both international and domestic law, the boundary line dividing the land from the ocean is called the baseline . The baseline is determined according to principles described in the 1958 United Nations Convention on the Territorial Sea and the Contiguous Zone and the 1982 United Nations Convention on the Law of the Sea (LOS Convention), and is normally the low water line along the coast, as marked on charts officially recognized by the coastal nation.

In the United States, the definition has been further refined based on Federal court decisions; the U.S. baseline is the mean lower low water line along the coast, as shown on official U.S. nautical charts. The baseline is the set of points and connected lines, representing the mean lower low water line in direct contact with the open sea and marking the seaward limit of open water. The baseline is drawn across river mouths, the opening of bays, and along the outer points of complex coastlines. The normal baseline from which the maritime zones are charted can be considered synonymous with the coastline as defined by the Submerged Lands Act.

We will use the latitudinal and longitudinal data for the baseline data points in conjunction with the leased tract center point data to identify the points on the States' coastlines that are closest to the geographic center of the applicable leased tracts.

Measurement of distances from States to leased tracts—Using the data identifying the geographic centers of the applicable leased tracts and the above described points on the States' coastlines, we will find the nearest coastline points to each applicable leased tract by measuring the distances between all of the appropriate data points, using calculated coastline-to-leased tract distances, and then determining the pairs of points with the shortest distance for each State/applicable leased tract pair.

The EPAct requires MMS to use the great circle distance to establish the distances between the States' coastlines and the leased tracts in the CIAP and MMS proposes to use the great circle distance for the GOMESA program as well. The great circle distance is the shortest distance between any two points on the surface of the Earth measured along a path on the surface of the Earth. Between any two points on a sphere which are not directly opposite each other, there is a unique great circle. The two points separate the great circle into two arcs. The length of the shorter arc is the great circle distance between the points.

The MMS will calculate each Gulf producing State's share of the qualified OCS revenues using the following proposed procedure:

(1) For each Gulf producing State, we propose to calculate and total, over all applicable leased tracts, the mathematical inverses of the distances between the points on the State's coastline that are closest to the geographic centers of the applicable leased tracts and the geographic centers of the applicable leased tracts.

(2) For each Gulf producing State, we would divide the sum of each State's inverse distances, from all applicable leased tracts, by the sum of the inverse distances from all applicable leased tracts across all four Gulf producing States. We would multiply the result by the amount of qualified OCS revenues to be shared, as shown below. In the formulas, I AL , I LA , I MS , and I TX represent the sum of the inverses of the closest distances between Alabama, Louisiana, Mississippi, and Texas and all applicable leased tracts, respectively.

The following simplified example, involving only two applicable leased tracts, illustrates the application of the steps above in calculating the revenue allocations for the Gulf producing States and also demonstrates how the inverse distance formulas work to reward those closest to the sources of revenue.

Suppose there are two applicable leased tracts (t 1 and t 2 ) and that the following table represents the closest distance from each Gulf producing State to the geographic centers of each applicable leased tract:

Further, suppose that fiscal year qualified OCS revenues are $96 million, $12 million of which would go to the LWCF and $36 million of which would be allocated to the Gulf producing States. Applying the formulas above, the $36 million would be allocated to the Gulf producing States as shown below.

However, because Texas' share is less than $3.6 million or 10 percent of the allocation of $36 million, we would allocate a 10 percent share to Texas and recalculate the other Gulf producing States' shares omitting Texas and its 10 percent share from the calculation as shown below.

Adding the three States' shares to the Texas' 10 percent share sums to $36,000,000.

The MMS will pay 20 percent of the allocable share of each Gulf producing State to eligible coastal political subdivisions of the Gulf producing State. The coastal political subdivisions eligible for GOMESA funds are shown in the table below.

In the allocation of revenues among the States' coastal political subdivisions, GOMESA refers to the CIAP provisions in EPAct that amend section 31 of the Outer Continental Shelf Lands Act (43 U.S.C. 1356a). Specifically, GOMESA states that the funds shall be allocated to each coastal political subdivision in accordance with subparagraphs (B), (C), and (E) of section 31(b)(4) of the Outer Continental Shelf Lands Act (43 U.S.C. 1356a(b)(4)) which provides that:

“(B) FORMULA.—Of the amount paid by the Secretary to coastal political subdivisions under subparagraph (A)—

(i) 25 percent shall be allocated to each coastal political subdivision in the proportion that—

(I) The coastal population of the coastal political subdivision; bears to

(II) The coastal population of all coastal political subdivisions in the producing State;

(ii) 25 percent shall be allocated to each coastal political subdivision in the proportion that—

(I) The number of miles of coastline of the coastal political subdivision; bears to

(II) The number of miles of coastline of all coastal political subdivisions in the producing State; and

(iii) 50 percent shall be allocated in amounts that are inversely proportional to the respective distances between the points in each coastal political subdivision that are closest to the geographic center of each leased tract, as determined by the Secretary.

(C) EXCEPTION FOR THE STATE OF LOUISIANA.—For the purposes of subparagraph (B)(ii), the coastline for coastal political subdivisions in the State of Louisiana without a coastline shall be considered to be 1/3 the average length of the coastline of all coastal political subdivisions with a coastline in the State of Louisiana.

(E) EXCLUSION OF CERTAIN LEASED TRACTS.—For purposes of subparagraph (B)(iii), a leased tract or portion of a leased tract shall be excluded if the tract or portion of a leased tract is located in a geographic area subject to a leasing moratorium on January 1, 2005, unless the lease was in production on that date.”

We will allocate 50 percent of the funds available to the coastal political subdivisions based on the population formula (25 percent), coastline formula (25 percent) and (B)(i) and (ii) above. To determine coastal political subdivision coastline lengths for calculating the coastline length shares, we will use standard geographical information system software (ArcGIS). To determine the population shares, we will make our allocations using the latest official U.S. Census Bureau census population data.

We will allocate the remaining 50 percent of the funds available to the coastal political subdivisions ((B)(iii)) by calculating and applying the inverse proportional distance ratios in the same way we do for allocating revenues to the Gulf producing States in this proposed rule, except we would exclude leased tracts in the 181 South Area due to the provisions of paragraph (E) of section 31(b)(4) of the Outer Continental Shelf Lands Act (43 U.S.C. 1356a(b)(4)) as amended by the Energy Poly Act of 2005. The 181 South Area was under a moratorium as of January 1, 2005, and no lease has ever produced in this area, thus those tracts cannot be included in the calculations for coastal political subdivisions in accordance with paragraph (E). In calculating the inverse proportional distances for States, we will use applicable leased tracts in the 181 Area in the Eastern Planning Area and in the 181 South Area. For the coastal political subdivisions, however, we will only use applicable leased tracts in the 181 Area in the Eastern Planning Area.

There is a slight possibility that there could be a fiscal year in which there are no applicable leased tracts in the 181 Area in the Eastern Planning Area, so there would be no way to allocate the 50 percent funds to coastal political subdivisions based on their inverse proportional distances to applicable leased tracts. This would only occur if no leasing occurred in the 181 Area in the Eastern Planning Area or all leases awarded in this area were relinquished at some point before 2016. In the event this situation should occur, we propose to allocate:

• 50 percent of the funds based on the proportion that each coastal political subdivision's population bears to the coastal population of all coastal political subdivisions in the Gulf producing State; and

• 50 percent of the funds based on the proportion that each coastal political subdivision's miles of coastline bears to the number of miles of coastline of all coastal political subdivisions in the producing State.

We believe this proposal is fair and is the alternative that is most consistent with the GOMESA provisions. We welcome your suggestions and recommendations about other alternatives to allocate funds among coastal political subdivisions if there were no applicable leased tracts in the Sale 181 Area in the Eastern Gulf of Mexico Planning Area in the fiscal year for which funds are being disbursed.

Section 104(c) of GOMESA authorizes the Secretary of the Interior (Secretary) to issue a bonus or royalty credit for use only in the Gulf of Mexico for the exchange of certain leases located offshore of the State of Florida. The proposed regulations for Bonus or Royalty Credits authorized under GOMESA can be found in the proposed rule RIN 1010-AD44, Bonus or Royalty Credits for Relinquishing Certain Leases Offshore, published February 1, 2008 (FR 73 6073). The statute does not exclude these credits from being applied to bonus or royalty obligations for leases subject to GOMESA revenue sharing provisions. To the extent this occurs, the United States would receive less qualified OCS revenues than if the bidders or lessees had paid in cash. It necessarily follows that any distribution of royalty or bonus payments to a State or coastal political subdivision would result in a corresponding reduction from what it would have been had the entire payment been made in cash.

The MMS projects the effect of section 104(c) on GOMESA revenue sharing during fiscal years 2007 through 2016 to be very limited. Since the GOMESA distribution requirements apply only to revenues derived from new leases issued in the portion of the 181 Area located in the Eastern Planning Area and to the 181 South Area, production, and hence royalty, from such leases likely will not occur anytime soon. Further, MMS allocates the portion of qualified OCS revenues paid to Gulf producing States between those States based on an inverse distance formula. This effect on a particular State from a reduction in a particular bonus payment for a new lease in the subject areas, because of use of a bonus credit, would be minimal. Finally, given the thousands of other leases to which the credits may be applied, the credits are more likely to be used to pay bonus and royalty obligations on leases that are not subject to revenue sharing provisions.

Per Section 105(c) of GOMESA, funds are required to be made available during the fiscal year immediately following the applicable fiscal year.

For the portion of qualified OCS revenues represented by bonuses and rental payments, the calculation of the revenue sharing distribution on applicable leased tracts can be finalized relatively quickly once the computational software is operational. In the case of the royalty portion, additional time can be expected. However, it will likely be several years before there are any royalties paid on GOMESA leases subject to revenue sharing during 2007-2016. Accordingly, MMS expects that during the first few years of the 2007-2016 revenue sharing period, before there are any producing leases, revenue sharing funds can be distributed within the first half of the following fiscal year.

This proposed rule is not a significant rule as determined by the Office of Management and Budget (OMB) and is not subject to review under E.O. 12866.

(1) This proposed rule would not have an annual effect of $100 million or more on the economy. It would not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The GOMESA directs the Secretary to disburse a portion of qualified OCS revenues to the Gulf producing States, coastal political subdivisions, and the LWCF. This proposed rule describes the formula and methodology MMS would use to allocate the revenues among the Gulf producing States and the coastal political subdivisions. The transfer of revenues from the Federal Government to State and local governments would not impose additional costs on any sector of the U.S. economy, and would not have any appreciable effect on the National economy. Internal estimates in June 2007, made for official budget projections, indicate that the annual transfers will total less than the $100 million annual threshold because of the relatively small OCS area whose bonus, rental, and royalty payments are subject to revenue sharing.

(2) This proposed rule would not create any serious inconsistency or otherwise interfere with an action taken or planned by another agency. No other agency is affected by the disbursements mandated by GOMESA.

(3) This proposed rule would not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) This proposed rule does not raise novel legal or policy issues. This proposed rule would merely provide formulas and methods to implement an Act of Congress. Previously, section 8(g) of the OCS Lands Act and section 384 of the Energy Policy Act of 2005 have provided for the distribution of a portion of OCS revenues to coastal States and local governments with distributions under the latter statute using essentially the same formulas and methods proposed in this rule.

The Department of the Interior (DOI) certifies that this proposed rule would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The provisions of this proposed rule specify how qualified OCS revenues would be allocated to certain States and eligible coastal political subdivisions. The proposed rule would have no effect on the amount of royalties, rents, or bonuses owed by lessees, operators, or payors regardless of size and, consequently, would not have a significant economic effect on offshore lessees and operators, including those classified as small businesses. Small entities may benefit from expenditures funded by these shared revenues, but it is not possible to estimate that effect since under the statute, States, and political subdivisions will be receiving such revenues.

Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of MMS, call 1-888-734-3247. You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the DOI.

This proposed rule is not a major rule under 5 U.S.C. 804(2) of the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

a. Would not have an annual effect on the economy of $100 million or more. The provisions of this proposed rule specify how qualified OCS revenues would be allocated to States and coastal political subdivisions. The proposed rule would have no effect on the amount of royalties, rents, or bonuses owed by lessees, operators, or payors regardless of size and, consequently, would not have a significant adverse economic effect on offshore lessees and operators, including those classified as small businesses. The Gulf producing States and coastal political subdivision recipients of the revenues would likely fund contracts that would benefit the local economies, small entities, and the environment. These effects are projected to be less than $100 million annually.

b. Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies, or geographic regions.

c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The effects, if any, of distributing revenues to the States and coastal political subdivision are projected to be beneficial.

This proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required because the proposal is not a mandate. It merely provides the formulas and methods to implement an allocation of revenue to certain States and eligible coastal political subdivisions, as directed by Congress. Further, the statute allows 3 percent of funds allocated to Gulf producing States and coastal political subdivisions to be used for planning and administrative activities.

Under the criteria in E.O. 12630, this proposed rule does not have significant takings implications. The proposed rule is not a governmental action capable of interference with constitutionally protected property rights. A takings implication assessment is not required.

Under the criteria in E.O. 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This proposed rule would not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this proposed rule would not affect that role, though it may fund activities that mitigate local challenges attributed to OCS exploration and development. A Federalism Assessment is not required.

This proposed rule complies with the requirements of E.O. 12988. Specifically, this proposed rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Under the criteria in E.O. 13175, we have evaluated this proposed rule and determined that it has no potential effects on federally recognized Indian tribes. There are no Indian or tribal lands in the OCS or tribes that qualify as GOMESA revenue sharing recipients.

The proposed revisions do not contain any information collection subject to the Paperwork Reduction Act (PRA) and does not require a submission to OMB for review and approval under section 3507(d) of the PRA.

This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. The MMS has analyzed this rule under the criteria of the National Environmental Policy Act (NEPA) and 516 Departmental Manual 6, Appendix 10.4C(1). The MMS completed a Categorical Exclusion Review for this action and concluded that the rulemaking is categorically excluded from NEPA because it involves “issuance and modification of regulations * * * for which the impacts are limited to administrative, economic, or technical effects * * *.” Therefore, preparation of an environmental analysis or environmental impact statement will not be required.

In developing this proposed rule we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554, app. C § 515, 114 Stat. 2763, 2763A-153-154).

This proposed rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

We are required by E.O. 12866, E.O.12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by any of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

For the reasons stated in the preamble, the Minerals Management Service (MMS) proposes to amend 30 CFR part 219 as follows:

On February 11, 2008, the Virginia Department of Environmental Quality (VADEQ) submitted a revision to its State Implementation Plan (SIP) pertaining to the removal of a NO X RACT permit for sources located at the Norfolk Southern Railway Company, located in Roanoke, Virginia, that had permanently shut down.

Prior to the final designations of the 8-hour ozone nonattainment area, EPA developed a program to allow potential nonattainment areas to voluntarily adopt local emission control programs to avoid air quality violations and mandated nonattainment area controls. Areas with air quality meeting the 1-hour ozone standard were eligible to participate. In order to participate, state and local governments and EPA had to develop and sign a memorandum of agreement that described the local control measures the state or local community intended to adopt and implement to reduce emissions of ozone-forming air pollutants. This agreement was known as an Early Action Compact (EAC). Areas that participated in the EAC program had the flexibility to institute their own approach in maintaining clean air and protecting public health.

Several localities in the Winchester and Roanoke, Virginia areas elected to participate in the EAC program. Virginia's strategy for enabling these localities to participate in the EAC program was to have them be subject to volatile organic compound (VOC) and NO X control measures from which they had previously been exempt. In order to enable the affected localities to implement VOC and NO X controls, the list of VOC and NO X emission control areas in 9 VAC 5-20-206, Volatile Organic Compound and Nitrogen Oxide Emission Control Areas, was expanded to include the counties of Botetourt, Frederick, and Roanoke, and the cities of Roanoke, Salem, and Winchester. This area became known as the Western Virginia Emissions Control Area (70 FR 21625, April 27, 2005). As a result, the VOC and NO X control regulations of Chapter 40 became applicable in the Roanoke area.

The Norfolk Southern Railway Company rail car and locomotive maintenance facility located in Roanoke, Virginia, was identified as one of the sources located in the Western Virginia Emissions Control Area subject to RACT. Accordingly, the company prepared a RACT analysis to support a RACT determination for the control of NO X emissions from the facility. After undergoing public comment, a state operating permit was issued to the source to ensure compliance with the RACT requirements. The permit, No. 20468, was submitted to EPA as a revision to the Commonwealth of Virginia SIP on February 7, 2005. EPA published its approval of the SIP revision on April 27, 2005 (70 FR 21621).

On February 11, 2008, the Commonwealth of Virginia submitted a revision to its SIP which consisted of mutual agreements between the VDEQ and the Norfolk Southern Corporation for permanent shut downs of certain NO X RACT-subject sources located at the Norfolk Southern Corporation complex in Roanoke, Virginia. Since the time of EPA's approval of the NO X RACT requirements for the Norfolk Southern Railway Company (70 FR 21621, April 27, 2005), many sources at the facility, including those that had previously been subject to the NO X RACT requirements of 9 VAC 5-40, via permit No. 20468, were permanently shut down. As a result, the VADEQ is requesting that EPA remove RACT permit No. 20468 from the Virginia SIP, since it is no longer applicable. Once EPA has approved this request and VADEQ has notified Norfolk Southern Corporation of its approval, the permit repeal will become effective 30 days later.

The units subject to the NO X RACT requirements of permit No. 20468, which have permanently shut down, include the following: Unit ID #8-01—B&W Stirling coal-fired spreader stoker boiler; Unit ID #8-02—B&W Stirling coal-fired spreader stoker boiler; Unit ID #8-03—B&W Stirling coal-fired spreader stoker boiler; Unit ID #8-04—Zurn Energy coal-fired spreader stoker boiler; Unit ID #43-03—15 open-front oil-fired metal heating furnaces; and Unit ID #51-13/14—one 13-ton capacity electric arc furnace.

The February 11, 2008 SIP revision consists of signed mutual determination agreements of permanent shut downs between the VADEQ and Norfolk Southern Corporation for the previously identified RACT-subject sources in accordance with the requirements of 9 VAC 5-20-220, and state operating permit regulations 9 VAC 5-80-1210, subsection L. Unit ID #8-01-B&W Stirling coal-fired spreader stoker boiler; Unit ID #8-02-B&W Stirling coal-fired spreader stoker boiler; and Unit ID #8-03-B&W Stirling coal-fired spreader stoker boiler were permanently shut down as per the shut down agreement between VADEQ and Northern Southern Corporation, dated August 20, 2007. Unit ID #8-04-Zurn Energy coal-fired spreader stoker boiler; Unit ID #43-03—15 open-front oil-fired metal heating furnaces, and Unit #15-13/14—one 13-ton capacity electric arc furnace, were permanently shut down as per the shut down agreement between VADEQ and Northern Southern Corporation, dated June 22, 2005.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

EPA is proposing to approve the Commonwealth of Virginia's SIP revision request, submitted on February 11, 2008, to remove NO X RACT permit No. 20468 from the Virginia SIP. The SIP revision consists of mutual agreements between VADEQ and the Norfolk Southern Corporation for permanent shut down of the units described above. EPA is proposing approval of the removal of NO X RACT permit No. 20468 from the Virginia SIP with the understanding that no future operation of this equipment shall occur until the owner has obtained the applicable permits pursuant to 9 VAC 5 Chapter 80 of Virginia's regulations. Once EPA has approved this request and VADEQ has notified Norfolk Southern Corporation of EPA's approval, the removal of permit No. 20468 from the Virginia SIP will become effective 30 days later. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule, pertaining to the removal of a NO X RACT permit from the Virginia SIP for sources at the Norfolk Southern Corporation that have permanently shut down, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

On December 17, 2007, PADEP formally submitted for approval, under section 110(a)(1) of the CAA, a SIP revision for the 8-hour ozone maintenance plan and the 2002 base-year inventory for the Lawrence County Area.

Section 110(a)(1) of the CAA requires that states submit to EPA plans to maintain the NAAQS promulgated by EPA. EPA interprets this provision to require that areas that were maintenance areas for the 1-hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS.

On May 20, 2005, EPA issued guidance that applies to areas that are designated unclassifiable/attainment for the 8-hour ozone standard. The purpose of this guidance is to address the maintenance requirements in section 110(a)(1) of the CAA, and to assist the states in the development of a SIP. The components from EPA's guidance include:

(1) An attainment emissions inventory, which is based on actual “typical summer day” emissions of volatile organic compounds (VOCs) and nitrogen oxides (NO X ) for a 10-year maintenance period, from a base-year chosen by the state; (2) a maintenance demonstration, which demonstrates how the area will remain in compliance with the 8-hour ozone standard for a period of 10 years following the effective date of designation unclassifiable/attainment (June 15, 2004); (3) an ambient air monitoring network, which will be in continuous operation in accordance with 40 CFR Part 58 to verify maintenance of the 8-hour ozone standard; (4) a contingency plan, that will ensure that in the event of a violation of the 8-hour ozone NAAQS, measures will be implemented as promptly as possible; and (5) a verification of continued attainment, indicating how the state intends on tracking the progress of the maintenance plan.

The Commonwealth of Pennsylvania has requested approval of its 8-hour ozone maintenance plan and 2002 base-year inventory for the Lawrence County Area. The PADEP 8-hour ozone maintenance plan addresses the five components of EPA's May 20, 2005 guidance, which pertains to the maintenance requirements in section 110(a)(1) of the CAA.

Attainment Emission Inventory: An attainment emissions inventory includes emissions during the time period associated with the monitoring data showing attainment. PADEP has provided an emissions inventory for VOCs and NO X , using 2002 as the base-year from which to project emissions. The 2002 inventory is consistent with EPA guidance, is based on actual “typical summer day” emissions of VOCs and NO X , and consists of a list of sources and their associated emissions. PADEP prepared comprehensive VOCs and NO X emissions inventories for the Lawrence County Area. In the maintenance plan, PADEP included information on the man-made sources of ozone precursors, VOCs and NO X ( e.g. , “stationary sources,” “stationary area sources,” “highway vehicles,” and “nonroad sources”).

Pennsylvania projected emissions for beyond 10 years from the effective date of the April 30, 2004 designations for the 8-hour ozone standard. PADEP has developed an emissions inventory for ozone precursors for the year 2002, 2009, and 2018. Tables 1 and 2 show the VOCs and NO X emissions reduction summary for 2002, 2009, and 2018.

On December 17, 2007, PADEP formally submitted for approval, under section 110(a)(1) of the CAA, a SIP revision for the 8-hour ozone maintenance plan and the 2002 base-year inventory for the Northumberland County Area.

Section 110(a)(1) of the CAA requires that states submit to EPA plans to maintain the NAAQS promulgated by EPA. EPA interprets this provision to require that areas that were maintenance areas for the 1-hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS.

On May 20, 2005, EPA issued guidance that applies to areas that are designated unclassifiable/attainment for the 8-hour ozone standard. The purpose of this guidance is to address the maintenance requirements in section 110(a)(1) of the CAA, and to assist the states in the development of a SIP. The components from EPA's guidance include: (1) An attainment emissions inventory, which is based on actual “typical summer day” emissions of volatile organic compounds (VOCs) and nitrogen oxides (NO X ) for a 10-year maintenance period, from a base-year chosen by the state; (2) a maintenance demonstration, which demonstrates how the area will remain in compliance with the 8-hour ozone standard for a period of 10 years following the effective date of designation unclassifiable/attainment (June 15, 2004); (3) an ambient air monitoring network, which will be in continuous operation in accordance with 40 CFR Part 58 to verify maintenance of the 8-hour ozone standard; (4) a contingency plan that will ensure that in the event of a violation of the 8-hour ozone NAAQS, measures will be implemented as promptly as possible; (5) a verification of continued attainment, indicating how the state intends on tracking the progress of the maintenance plan.

The Commonwealth of Pennsylvania has requested approval of its 8-hour ozone maintenance plan and 2002 base-year inventory for the Northumberland County Area. The PADEP 8-hour ozone maintenance plan addresses the five components of EPA's May 20, 2005 guidance, which pertains to the maintenance requirements in section 110(a)(1) of the CAA.

Attainment Emission Inventory: An attainment emissions inventory includes emissions during the time period associated with the monitoring data showing attainment. PADEP has provided an emissions inventory for VOCs and NO X , using 2002 as the base-year from which to project emissions. The 2002 inventory is consistent with EPA guidance, is based on actual “typical summer day” emissions of VOCs and NO X , and consists of a list of sources and their associated emissions. PADEP prepared comprehensive VOCs and NO X emissions inventories for the Northumberland County Area. In the maintenance plan, PADEP included information on the man-made sources of ozone precursors, VOCs and NO X (e.g., “stationary sources,” “stationary area sources,” “highway vehicles,” and “nonroad sources”).

Pennsylvania projected emissions for beyond 10 years from the effective date of the April 30, 2004, designations for the 8-hour ozone standard. PADEP has developed an emissions inventory for ozone precursors for the year 2002, 2009, and 2018. Tables 1 and 2 show the VOCs and NO X emissions reduction summary for 2002, 2009, and 2018.

EPA believes Pennsylvania has demonstrated that the VOCs and NO X emissions in the Northumberland County Area will improve due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other state-adopted measures.

Maintenance demonstration: As Table 1 and 2 indicate, the Northumberland County Attainment Area plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that future emissions of VOCs and NO X remain at or below the 2002 base-year emissions levels through the year 2018.

Based upon the comparison of the projected emissions and the 2002 base-year inventory emissions, along federal and state measures, EPA concludes that PADEP successfully demonstrates that the 8-hour ozone standard will be maintained in the Northumberland County Area. Further details of Northumberland County Attainment Area's 8-hour ozone maintenance demonstration can be found in a Technical Support Document (TSD) prepared for this rulemaking.

Ambient Air Quality Monitoring: With regard to the ambient air monitoring component of the maintenance plan, Pennsylvania commits to continue operating its current air quality monitoring stations in accordance with 40 CFR Part 58, to verify the attainment status of the area, with no reductions in the number of sites from those in the existing network unless pre-approved by EPA.

Contingency Plan: Section 110(a)(1) of the CAA requires that the state develop a contingency plan which will ensure that any violation of a NAAQS is promptly corrected. The purpose of the contingency plan is to adopt measures, outlined in the maintenance plan, in order to assure continued attainment in the event of a violation of the 8-hour ozone NAAQS. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s).

Since the Northumberland County Area does not have a monitor, contingency measures will be considered if for two consecutive years the fourth highest 8-hour ozone concentrations at the design monitor for the Harrisburg Area are above 84 parts per billion (ppb). If this trigger point occurs, PADEP will evaluate whether additional local emission control measures should be implemented in Northumberland County in order to prevent a violation of the air quality standard. PADEP will analyze the conditions leading to the excessive ozone levels and evaluate what measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of federal, state, and local measures that have been adopted but not yet implemented at the time the excessive ozone levels occurred. PADEP will then begin the process of implementing the contingency measures outlined in their maintenance plan.

Verification of continued attainment: PADEP will track the attainment status of the 8-hour ozone NAAQS for Northumberland County by reviewing air quality at the design monitor for the Harrisburg Area and emissions data during the maintenance period. An annual evaluation of vehicle miles traveled and emissions reported from stationary sources will be performed and compared to the assumptions about the factors used in the maintenance plan. PADEP will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR part 51, subpart A) for any unanticipated increases. Based on these evaluations, PADEP will consider whether any further emission control measures should be implemented.

EPA is proposing to approve the maintenance plan and the 2002 base-year inventory for the Northumberland County Area, submitted on December 17, 2007, as revisions to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan and 2002 base-year inventory for the Northumberland County Area because it meets the requirements of section 110(a)(1) of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule to approve the maintenance plan and the 2002 base-year inventory for the Northumberland County Area in the Commonwealth of Pennsylvania does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

On December 17, 2007, PADEP formally submitted for approval, under section 110(a)(1) of the CAA, a SIP revision for the 8-hour ozone maintenance plan and the 2002 base-year inventory for the Snyder County Area.

Section 110(a)(1) of the CAA requires that states submit to EPA plans to maintain the NAAQS promulgated by EPA. EPA interprets this provision to require that areas that were maintenance areas for the 1-hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS.

On May 20, 2005, EPA issued guidance that applies to areas that are designated unclassifiable/attainment for the 8-hour ozone standard. The purpose of this guidance is to address the maintenance requirements in section 110(a)(1) of the CAA, and to assist the states in the development of a SIP. The components from EPA's guidance include: (1) An attainment emissions inventory, which is based on actual “typical summer day” emissions of volatile organic compounds (VOCs) and nitrogen oxides (NO X ) for a 10-year maintenance period, from a base-year chosen by the state; (2) a maintenance demonstration, which demonstrates how the area will remain in compliance with the 8-hour ozone standard for a period of 10 years following the effective date of designation unclassifiable/attainment (June 15, 2004); (3) an ambient air monitoring network, which will be in continuous operation in accordance with 40 CFR Part 58 to verify maintenance of the 8-hour ozone standard; (4) a contingency plan, that will ensure that in the event of a violation of the 8-hour ozone NAAQS, measures will be implemented as promptly as possible; (5) a verification of continued attainment, indicating how the state intends on tracking the progress of the maintenance plan.

The Commonwealth of Pennsylvania has requested approval of its 8-hour ozone maintenance plan and 2002 base-year inventory for the Snyder County Area. The PADEP 8-hour ozone maintenance plan addresses the five components of EPA's May 20, 2005 guidance, which pertains to the maintenance requirements in section 110(a)(1) of the CAA.

Attainment Emission Inventory: An attainment emissions inventory includes emissions during the time period associated with the monitoring data showing attainment. PADEP has provided an emissions inventory for VOCs and NO X , using 2002 as the base-year from which to project emissions. The 2002 inventory is consistent with EPA guidance, is based on actual “typical summer day” emissions of VOCs and NO X , and consists of a list of sources and their associated emissions. PADEP prepared comprehensive VOCs and NO X emissions inventories for the Snyder County Area. In the maintenance plan, PADEP included information on the man-made sources of ozone precursors, VOCs and NO X (e.g., “stationary sources,” “stationary area sources,” “highway vehicles,” and “nonroad sources”).

Pennsylvania projected emissions for beyond 10 years from the effective date of the April 30, 2004 designations for the 8-hour ozone standard. PADEP has developed an emissions inventory for ozone precursors for the year 2002, 2009, and 2018. Tables 1 and 2 show the VOCs and NO X emissions reduction summary for 2002, 2009, and 2018.

EPA believes Pennsylvania has demonstrated that the VOCs and NO X emissions in the Snyder County Area will improve due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other state-adopted measures.

Maintenance demonstration: As Table 1 and 2 indicate, the Snyder County Attainment Area plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that future emissions of VOCs and NO X remain at or below the 2002 base-year emissions levels through the year 2018.

Based upon the comparison of the projected emissions and the 2002 base-year inventory emissions, along federal and state measures, EPA concludes that PADEP successfully demonstrates that the 8-hour ozone standard will be maintained in the Snyder County Area. Further details of Snyder County Attainment Area's 8-hour ozone maintenance demonstration can be found in a Technical Support Document (TSD) prepared for this rulemaking.

Ambient Air Quality Monitoring: With regard to the ambient air monitoring component of the maintenance plan, Pennsylvania commits to continue operating its current air quality monitoring stations in accordance with 40 CFR Part 58, to verify the attainment status of the area, with no reductions in the number of sites from those in the existing network unless pre-approved by EPA.

Contingency Plan: Section 110(a)(1) of the CAA requires that the state develop a contingency plan which will ensure that any violation of a NAAQS is promptly corrected. The purpose of the contingency plan is to adopt measures, outlined in the maintenance plan, in order to assure continued attainment in the event of a violation of the 8-hour ozone NAAQS. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s).

Since the Snyder County Area does not have a monitor, contingency measures will be considered if for two consecutive years the fourth highest 8-hour ozone concentrations at the design monitor for the Harrisburg Area are above 84 parts per billion (ppb). If this trigger point occurs, PADEP will evaluate whether additional local emission control measures should be implemented in Snyder County in order to prevent a violation of the air quality standard. PADEP will analyze the conditions leading to the excessive ozone levels and evaluate what measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of federal, state, and local measures that have been adopted but not yet implemented at the time the excessive ozone levels occurred. PADEP will then begin the process of implementing the contingency measures outlined in their maintenance plan.

Verification of continued attainment: PADEP will track the attainment status of the 8-hour ozone NAAQS for Snyder County by reviewing air quality at the design monitor for the Harrisburg Area and emissions data during the maintenance period. An annual evaluation of vehicle miles traveled and emissions reported from stationary sources will be performed and compared to the assumptions about the factors used in the maintenance plan. PADEP will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR 51, Subpart A) for any unanticipated increases. Based on these evaluations, PADEP will consider whether any further emission control measures should be implemented.

EPA is proposing to approve the maintenance plan and the 2002 base-year inventory for the Snyder County Area, submitted on December 17, 2007, as revisions to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan and 2002 base-year inventory for the Snyder County Area because it meets the requirements of section 110(a)(1) of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule to approve the maintenance plan and the 2002 base-year inventory for the Snyder County Area in the Commonwealth of Pennsylvania does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

On December 17, 2007, PADEP formally submitted for approval, under section 110(a)(1) of the CAA, a SIP revision for the 8-hour ozone maintenance plan and the 2002 base-year inventory for the Pike County Area.

Section 110(a)(1) of the CAA requires that states submit to EPA plans to maintain the NAAQS promulgated by EPA. EPA interprets this provision to require that areas that were maintenance areas for the 1-hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS.

On May 20, 2005, EPA issued guidance that applies to areas that are designated unclassifiable/attainment for the 8-hour ozone standard. The purpose of this guidance is to address the maintenance requirements in section 110(a)(1) of the CAA, and to assist the states in the development of a SIP. The components from EPA's guidance include: (1) An attainment emissions inventory, which is based on actual “typical summer day” emissions of volatile organic compounds (VOCs) and nitrogen oxides (NO X ) for a 10-year maintenance period, from a base-year chosen by the state; (2) a maintenance demonstration, which demonstrates how the area will remain in compliance with the 8-hour ozone standard for a period of 10 years following the effective date of designation unclassifiable/attainment (June 15, 2004); (3) an ambient air monitoring network, which will be in continuous operation in accordance with 40 CFR Part 58 to verify maintenance of the 8-hour ozone standard; (4) a contingency plan, that will ensure that in the event of a violation of the 8-hour ozone NAAQS, measures will be implemented as promptly as possible; (5) a verification of continued attainment, indicating how the state intends on tracking the progress of the maintenance plan.

The Commonwealth of Pennsylvania has requested approval of its 8-hour ozone maintenance plan and 2002 base-year inventory for the Pike County Area. The PADEP 8-hour ozone maintenance plan addresses the five components of EPA's May 20, 2005 guidance, which pertains to the maintenance requirements in section 110(a)(1) of the CAA.

Attainment Emission Inventory: An attainment emissions inventory includes emissions during the time period associated with the monitoring data showing attainment. PADEP has provided an emissions inventory for VOCs and NO X , using 2002 as the base-year from which to project emissions. The 2002 inventory is consistent with EPA guidance, is based on actual “typical summer day” emissions of VOCs and NO X , and consists of a list of sources and their associated emissions. PADEP prepared comprehensive VOCs and NO X emissions inventories for the Pike County Area. In the maintenance plan, PADEP included information on the man-made sources of ozone precursors, VOCs and NO X ( e.g. , “stationary sources,” “stationary area sources,” “highway vehicles,” and “nonroad sources”).

Pennsylvania projected emissions for beyond 10 years from the effective date of the April 30, 2004 designations for the 8-hour ozone standard. PADEP has developed an emissions inventory for ozone precursors for the year 2002, 2009, and 2018. Tables 1 and 2 show the VOCs and NO X emissions reduction summary for 2002, 2009, and 2018.

EPA believes Pennsylvania has demonstrated that the VOCs and NO X emissions in the Pike County Area will improve due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other state-adopted measures.

Maintenance demonstration: As Tables 1 and 2 indicate, the Pike County Attainment Area plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that future emissions of VOCs and NO X remain at or below the 2002 base-year emissions levels through the year 2018.

Based upon the comparison of the projected emissions and the 2002 base-year inventory emissions, along federal and state measures, EPA concludes that PADEP successfully demonstrates that the 8-hour ozone standard will be maintained in the Pike County Area. Further details of Pike County Attainment Area's 8-hour ozone maintenance demonstration can be found in a Technical Support Document (TSD) prepared for this rulemaking.

Ambient Air Quality Monitoring: With regard to the ambient air monitoring component of the maintenance plan, Pennsylvania commits to continue operating its current air quality monitoring stations in accordance with 40 CFR Part 58, to verify the attainment status of the area, with no reductions in the number of sites from those in the existing network unless pre-approved by EPA.

Contingency Plan: Section 110(a)(1) of the CAA requires that the state develop a contingency plan which will ensure that any violation of a NAAQS is promptly corrected. The purpose of the contingency plan is to adopt measures, outlined in the maintenance plan, in order to assure continued attainment in the event of a violation of the 8-hour ozone NAAQS. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s).

Since the Pike County Area does not have a monitor, contingency measures will be considered if for two consecutive years the fourth highest 8-hour ozone concentrations at the design monitor for the Scranton-Wilkes Barre Area are above 84 parts per billion (ppb). If this trigger point occurs, PADEP will evaluate whether additional local emission control measures should be implemented in Pike County in order to prevent a violation of the air quality standard. PADEP will analyze the conditions leading to the excessive ozone levels and evaluate what measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of federal, state, and local measures that have been adopted but not yet implemented at the time the excessive ozone levels occurred. PADEP will then begin the process of implementing the contingency measures outlined in their maintenance plan.

Verification of continued attainment: PADEP will track the attainment status of the 8-hour ozone NAAQS for Pike County by reviewing air quality at the design monitor for the Scranton-Wilkes Barre Area and emissions data during the maintenance period. An annual evaluation of vehicle miles traveled and emissions reported from stationary sources will be performed and compared to the assumptions about the factors used in the maintenance plan. PADEP will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR 51, Subpart A) for any unanticipated increases. Based on these evaluations, PADEP will consider whether any further emission control measures should be implemented.

EPA is proposing to approve the maintenance plan and the 2002 base-year inventory for the Pike County Area, submitted on December 17, 2007, as revisions to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan and 2002 base-year inventory for the Pike County Area because it meets the requirements of section 110(a)(1) of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule to approve the maintenance plan and the 2002 base-year inventory for the Pike County Area in the Commonwealth of Pennsylvania does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

On December 17, 2007, PADEP formally submitted for approval, under section 110(a)(1) of the CAA, a SIP revision for the 8-hour ozone maintenance plan and the 2002 base-year inventory for the Juniata County Area.

Section 110(a)(1) of the CAA requires that states submit to EPA plans to maintain the NAAQS promulgated by EPA. EPA interprets this provision to require that areas that were maintenance areas for the 1-hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS.

On May 20, 2005, EPA issued guidance that applies to areas that are designated unclassifiable/attainment for the 8-hour ozone standard. The purpose of this guidance is to address the maintenance requirements in section 110(a)(1) of the CAA, and to assist the states in the development of a SIP. The components from EPA's guidance include:

(1) An attainment emissions inventory, which is based on actual “typical summer day” emissions of volatile organic compounds (VOCs) and nitrogen oxides (NO X ) for a 10-year maintenance period, from a base-year chosen by the state; (2) a maintenance demonstration, which demonstrates how the area will remain in compliance with the 8-hour ozone standard for a period of 10 years following the effective date of designation unclassifiable/attainment (June 15, 2004); (3) an ambient air monitoring network, which will be in continuous operation in accordance with 40 CFR Part 58 to verify maintenance of the 8-hour ozone standard; (4) a contingency plan that will ensure that in the event of a violation of the 8-hour ozone NAAQS, measures will be implemented as promptly as possible; (5) a verification of continued attainment, indicating how the state intends on tracking the progress of the maintenance plan.

The Commonwealth of Pennsylvania has requested approval of its 8-hour ozone maintenance plan and 2002 base-year inventory for the Juniata County Area. The PADEP 8-hour ozone maintenance plan addresses the five components of EPA's May 20, 2005 guidance, which pertains to the maintenance requirements in section 110(a)(1) of the CAA.

Attainment Emission Inventory: An attainment emissions inventory includes emissions during the time period associated with the monitoring data showing attainment. PADEP has provided an emissions inventory for VOCs and NO X , using 2002 as the base-year from which to project emissions. The 2002 inventory is consistent with EPA guidance, is based on actual “typical summer day” emissions of VOCs and NO X , and consists of a list of sources and their associated emissions. PADEP prepared comprehensive VOCs and NO X emissions inventories for the Juniata County Area. In the maintenance plan, PADEP included information on the man-made sources of ozone precursors, VOCs and NO X (e.g., “stationary sources,” “stationary area sources,” “highway vehicles,” and “nonroad sources”).

Pennsylvania projected emissions for beyond 10 years from the effective date of the April 30, 2004 designations for the 8-hour ozone standard. PADEP has developed an emissions inventory for ozone precursors for the year 2002, 2009, and 2018. Tables 1 and 2 show the VOCs and NO X emissions reduction summary for 2002, 2009, and 2018.

See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations Section of this Federal Register .

I. Background

On May 27, 2005, we published in the Federal Register a proposed rule (70 FR 30840) that would establish new conditions of participation for Medicare-participating hospices. The proposed revisions would focus on the care delivered to patients and their families and the outcomes of that care by reflecting an interdisciplinary, patient-centered approach to care planning and delivery and allowing hospices flexibility in meeting quality standards.

This notice announces an extension of the timeline for publication of a final rule responding to comments on the above proposed rule. Section 1871(a)(3)(B) of the Act requires the Secretary to publish final regulations no later than 3 years after the publication date of the proposed rule. To meet this 3-year timeframe, the final rule would have to be published by May 27, 2008.

Section 1871(a)(3)(B) also provides that under “exceptional circumstances,” the Secretary may extend the initial targeted publication date of a final regulation. The Secretary is required, prior to the regulation's previously established proposed publication date, to provide public notice of this extension in the Federal Register , including a brief explanation of the justification for the variation.

This notice extends the timeline based on the following exceptional circumstances, which we believe, justify such an extension. We are not able to meet the 3-year timeline for publication of the final rule due to the complexity of the rule and the large number of public comments we received.

We received a large volume of timely comments on the proposed rule. The commenters presented extremely complex and detailed policy and legal issues, which require extensive consultation, review, and analysis. Also, the development of the final rule requires collaboration among other agencies under the Department of Health and Human Services (DHHS). We note that extensive coordination has been needed to ensure that these provisions follow guidelines and rules of all affected administrative agencies.

In addition, this final rule is extremely comprehensive because it updates and revises policies, some of which were originally established in 1983, regarding patient assessment, patient care planning and delivery, quality assessment and performance improvement, drug and biologicals management, inpatient care facilities, and the role of hospice care in long term care facilities. Therefore, the incorporation of these updates has required extensive time, outreach, and collaboration to ensure that the final rule's provisions are consistent with current best practices in the provision of hospice services.

We believe that an extension of the publication timeline is necessary and appropriate to ensure that we are able to address all of the comments and issues raised in response to the May 27, 2005 proposed rule. Therefore, this notice extends the timeline for publication of the final rule until May 27, 2009.

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

Administrative Procedure Act Statement. This matter is not a rulemaking governed by the Administrative Procedure Act (APA), 5 U.S.C. 553. FEMA publishes flood elevation determinations for notice and comment; however, they are governed by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and do not fall under the APA.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR Part 67 is proposed to be amended as follows:

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

Administrative Procedure Act Statement. This matter is not a rulemaking governed by the Administrative Procedure Act (APA), 5 U.S.C. 553. FEMA publishes flood elevation determinations for notice and comment; however, they are governed by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and do not fall under the APA.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

We intend any final action resulting from this proposal to be as accurate and effective as possible. Therefore, we request comments or suggestions on this proposed rule. We particularly seek comments concerning:

(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq. ), including whether the benefit of designation would outweigh threats to the species caused by the designation, such that the designation of critical habitat is not prudent;

(2) Specific information on:

• The amount and distribution of Alabama sturgeon habitat, flows needed by the species; and amount and distribution of free-flowing waters within the species' historical or present range,

• What areas occupied at the time of listing that contain features essential to the conservation of the species we should include in the designation and why, and

• What areas not occupied at the time of listing are essential for the conservation of the species and why;

(3) Land-use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

(4) Information regarding the potential impacts of this proposed designation on the activities we have identified that may adversely affect critical habitat (see the Application of the “Adverse Modification” Standard section), specifically those that are associated with the following actions:

• Actions that would significantly alter the existing flow regime to the point at which the habitat could no longer sustain normal behavior and promote species recovery,

• Actions that would significantly alter the morphology and stability of the river channel,

• Actions that would significantly decrease the amount of currently available free-flowing habitat, and

• Actions that would significantly alter water chemistry beyond what is required in the State of Alabama water quality standards;

(5) Any foreseeable economic, national-security, or other potential impacts resulting from the proposed designation, and, in particular, any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts; and

(6) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov , your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov .

In this proposed rule, we intend to discuss only those topics directly relevant to the distribution of the Alabama sturgeon and the designation of its critical habitat. For more information on the species, refer to the final and proposed listing rules published in the Federal Register on May 5, 2000 (65 FR 26438), and on March 26, 1999 (64 FR 14676), respectively.

Sturgeon is the common name used for large, bony-plated, primitive fishes in the family Acipenseridae which typically grow slowly and mature late in life. The Alabama sturgeon ( Scaphirhynchus suttkusi ) is the smallest of all the North American sturgeons, typically weighing only 1 to 2 kilograms (2 to 4 pounds) at maturity. The head is broad and flattened shovel-like at the snout, with a tubular and protrusive mouth. As with all sturgeon species, there are four barbels (whisker-like appendages) located on the bottom of the snout in front of the mouth that are used to locate prey. The body is lined with five rows of bony plates called scutes. Bony plates also cover the head, back, and sides, and the body narrows abruptly to the rear forming a narrow stalk between the body and tail. The upper lobe of the tail fin is elongated and ends in a long filament. Coloration of the upper body is light tan to golden yellow, with a creamy white belly. The life span of the Alabama sturgeon is unknown. Although few individuals probably exceed 12 to 15 years of age, it is possible the species may live longer.

The Alabama sturgeon is endemic to rivers of the Mobile River Basin below the Fall Line (inland boundary of the Coastal Plain) (Mettee et al. 1996, p. 83; Boschung and Mayden 2004, p. 109). Its current range includes the Alabama River from R.F. Henry Lock and Dam downstream to the confluence of the Tombigbee River. The species is also known to survive in the Cahaba River. For information on range of the species see the Criteria Used to Identify Critical Habitat section of this rule.

Despite extensive and intensive efforts in the decade prior to its listing, only eight Alabama sturgeon were captured, or reported captured and released. These fish were collected from several locations in the Alabama River between Millers Ferry Lock and Dam and its confluence with the Tombigbee River (Rider and Hartfield 2007, p. 490). Since the 2000 publication of the final rule listing the species, two Alabama sturgeon have been captured or reported captured. One of these was captured, videotaped, and released in the lower Cahaba River shortly after publication of the final rule by a fisherman in July 2000. The most recent capture was an individual collected from the Alabama River below Claiborne Lock and Dam in April 2007, by the Alabama Department of Conservation and Natural Resources (ADCNR). This fish was implanted with a sonic tag and released in May 2007 at the location at which it was captured.

Flows in the Alabama River are heavily influenced by upstream releases from Alabama Power Company and Corps hydropower projects, and riverine habitats are fragmented by Claiborne and Millers Ferry Locks and Dams. This 240-mile (386-kilometer) stretch of the Alabama River, along with the lower Cahaba River, represents the last remaining viable habitat for the sturgeon.

On May 5, 2000, we listed the Alabama sturgeon as endangered under the Act (65 FR 26438). In the final listing rule, we determined that designation of critical habitat was prudent but critical habitat was not determinable, due to the lack of information on the sturgeon's biological and habitat needs.

Following this listing decision, the Alabama-Tombigbee Rivers Coalition (Coalition) brought suit in the United States District Court for the Northern District of Alabama under the citizen-suit provision of the Act and the judicial review provisions of the Administrative Procedure Act, alleging several defects in the listing process. The district court dismissed the Coalition's lawsuit for lack of standing, but on appeal the U.S. Court of Appeals for the Eleventh Circuit reversed, concluding that the Coalition did have standing to challenge the listing decision. On remand, the District Court granted the United States' motion for summary judgment but ordered the Service to issue both a proposed and final rule designating critical habitat by May 14, 2006, and November 14, 2006, respectively. Alabama-Tombigbee Rivers Coalition et al. v. Norton et al. , No. CV-01-0194-VEH (Final Order, Nov. 14, 2005). The Coalition appealed and the District Court stayed the judgment pending review by the Eleventh Circuit. Under the direction of the District Court, the Service would have two years from the time of the Eleventh Circuit's decision to complete the designation of critical habitat.

On February 8, 2007, the Eleventh Circuit affirmed the decision of the District Court, finding among other things that vacating the listing decision was not the proper remedy for failure to designate critical habitat. Alabama-Tombigbee Rivers Coalition et al. v. Kempthorne et al., 477 F.3d 1250 (11th Cir. 2007). On May 16, 2007, the Eleventh Circuit issued its judgment as a mandate, thus lifting the stay imposed by the District Court and requiring the Service to issue a prudency determination and, if prudent, a proposed rule designating critical habitat within one year (May 16, 2008), and a final rule designating critical habitat within one year after that (May 16, 2009). It should be noted that the Coalition asked the Supreme Court to review the Eleventh Circuit's decision; that request was denied on January 7, 2008. Alabama-Tombigbee Rivers Coalition et al. v. Kempthorne et al., 128 S. Ct. 877 (2008).

For more information on previous Federal actions concerning Alabama sturgeon, refer to the final listing rule, which we published in the Federal Register on May 5, 2000 (65 FR 26438). We are proposing this action in accordance with section 4(b)(2) of the Act.

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided under the Act are no longer necessary.

Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7 of the Act requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by the landowner. Where the landowner seeks or requests federal agency funding or authorization that may affect a listed species or critical habitat, the consultation requirements of section 7 would apply, but even in the event of a destruction or adverse modification finding, the landowner's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

For inclusion in a critical habitat designation, habitat within the geographical area occupied by the species at the time it was listed must contain features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)). Occupied habitat that contains the features essential to the conservation of the species meets the definition of critical habitat only if those features may require special management considerations or protection. Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be proposed as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that we may eventually determine, based on scientific data not now available to the Service, are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species.

Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

As required by section 4(b) of the Act, we used the best scientific data available in determining areas within the geographical area occupied at the time of listing that contain features essential to the conservation of Alabama sturgeon, and areas outside of the geographical area occupied at the time of listing that are essential for the conservation of Alabama sturgeon. We have reviewed available information pertaining to the habitat requirements of this species. This information includes our own published and unpublished data, field notes, unpublished survey reports, communications with qualified experts, peer-reviewed scientific publications, and the final and proposed listing rules for the species. We are not currently proposing any areas outside the geographical area presently occupied by the species because we are unaware of any suitable areas of habitat for this species outside of the area being proposed.

At the time of listing, we lacked the biological and habitat information necessary to identify the primary constituent elements and areas essential for conservation. This lack of information continues to be an issue, since we have only two confirmed Alabama sturgeon captures since publication of the final rule. Therefore, we reviewed the available data and information on the Alabama sturgeon's closest related species, the pallid ( Scaphirhynchus albus ) and the shovelnose sturgeons ( S. platorynchus ). Unfortunately, although both the pallid and shovelnose sturgeons are more abundant and widely distributed, very little specific information is available concerning their biological and physical requirements. However, by synthesizing the best scientific available data on all three species, and considering historical and current conditions at the locations where Alabama sturgeon have been collected, we have identified the physical and biological requirements of the Alabama sturgeon.

In accordance with section 3(5)(A)(i) of the Act and the regulations at 50 CFR 424.12, in determining which areas occupied by the species at the time of listing to propose as critical habitat, we consider the physical and biological features that are essential to the conservation of the species to be the primary constituent elements laid out in the appropriate quantity and spatial arrangement for conservation of the species. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

We derive the specific primary constituent elements (PCEs) required for the Alabama sturgeon from its biological needs.

All river sturgeons ( Scaphirhynchus spp. ) are migratory and may migrate hundreds of kilometers to spawn. The newly hatched larvae of other river sturgeon are free-floating and may drift hundreds of kilometers before settling to a benthic juvenile existence. Therefore, connectivity of spawning, juvenile, and adult feeding and growing habitats is necessary for the conservation of the species.

Based on collection records, the species is known to inhabit the main channel of large coastal plain rivers of the Mobile River Basin. Specimens have been taken over a variety of substrates including sand, gravel, and mud, from 6 to 14 meters (m) (20 to 46 feet (ft)) deep (Williams and Clemmer 1991, p. 26). The U.S. Army Corps of Engineers identified 30 locations in the Alabama River where 58 Alabama sturgeon were reportedly captured between 1950 and 1998, and documented channel morphology and substrate types at 12 of the capture locations during low flow conditions. Substrates associated with these capture sites included sand, gravel, and limestone outcrops. All capture locations downstream of Claiborne Lock and Dam were either on or within 300 m (984 ft) of a sandbar.

Most historical and recent sturgeon capture sites are at or near features presumably associated with feeding, reproduction, or refugia and include rock walls, channel training devices, deep pools, mussel beds, and/or stable sand and gravel bottoms (Burke and Ramsey 1985, p. 53, Mayden and Kuhajda 1996, p. 257, Hartfield and Garner 1998, p. 4). The presence of mussel beds represents stable channel habitats with high aquatic invertebrate diversity and density that are likely important feeding areas for sturgeon; deeper holes may be used as thermal refugia during times of low flow and warmer temperatures (Hartfield and Garner 1998, p. 5).

Data collected from a radio-tagged Alabama sturgeon, released in 1985 near Millers Ferry Lock and Dam on the Alabama River and tracked for four months, showed that its preferred position was in swift current at a depth of 7.7 to 12.3 m (25 to 40 ft), but never at the deepest part at any location except where bottom contour was uniform (Burke and Ramsey 1985, p. 32). Irwin et al. (2005, p. 5) and Kynard et al. (2007, p. 369) documented that adult shovelnose sturgeon are more active at night. This type of behavior was also observed in juvenile shovelnose sturgeon (Kynard et al. 2007, p. 369), and a similar pattern is currently being observed by the Alabama sturgeon collected in 2007 that is being tracked in the lower Alabama River (ADCNR and Service unpublished data 2007, 2008). During daylight hours in the summer of 2007, this sturgeon remained in the deeper, flowing portions of the channel. However, during the late afternoon and early evening hours, the sturgeon moved into shallower habitats directly adjacent to a small perennial tributary. We have no evidence that the sturgeon moves into these tributaries; it may be taking advantage of cooler water found at the interface between the tributaries and the main stem of the river. The amount of time this tagged fish spent in these areas suggests these areas are important for feeding or for providing a thermal refugia during the warmer summer months.

Reports suggest that the species is an opportunistic bottom feeder (Mayden and Kuhajda 1996, p. 257, Williams and Clemmer 1991, p. 26, Burke and Ramsey 1985, p. 35). Keevin et al . (2007, p. 500) conducted a stomach content analysis on 12 Alabama sturgeon from museum collections and found aquatic insects and fish to be the dominate food items. This is quite similar to the diets of the pallid and shovelnose sturgeons described by Gerrity et al. (2006, p. 606) and Hoover et al. (2007, p. 494). Except for the absence of fish in the diet of shovelnose sturgeon, all three species tended to feed on similar items, primarily aquatic insects. The insects identified in these studies are found over a variety of substrates including soft and hard rocky bottoms; therefore, protection of most shallow-water habitat (shoals, gravel or sand bars) is essential to maintaining an acceptable food base. A distinct difference observed by Keevin et al. (2007, p. 502) in the diet of the Alabama sturgeon was the presence of ceratopogonids (biting midges) and siphlonurids (of a family of mayflies). These small, aquatic larvae are very active, strong swimmers that tend to occupy the water column or areas near the surface (Keevin et al. 2007, p. 502), indicating that the sturgeon may be a mid-water column feeder. Irwin et al. (2005, p. 39) found that juvenile shovelnose sturgeon overwhelmingly preferred feeding in sandy substrates and actively avoided gravel areas. It is unknown if this behavior is displayed by the Alabama sturgeon, but 2007 tracking data suggest that the species may rest in the deeper, fast-flowing areas during the day and feed in shallow, sandy shoal areas at night (ADCNR and Service unpublished data).

Egg development and hatching and larval and juvenile development require moderate to high levels of dissolved oxygen, as well as acceptable levels of other water quality parameters. For example, research indicates a high incidence of hermaphrodism in shovelnose and pallid sturgeon may be linked to water contamination (U.S. Environmental Protection Agency (USEPA) 2007, p. 4).

There are currently more than 1,600 National Pollutant Discharge Elimination System (NPDES) permits issued within the Alabama River downstream of the Fall Line, which could impact sturgeon habitat. It is possible that some of these point-source discharges, along with other non-point sources of pollutants, could produce pollutant concentrations that may be harmful to the Alabama sturgeon. At the time of listing in May 2000, we believed that State water quality standards (which the State adopted from the national standards set by the USEPA) were protective of the Alabama sturgeon as long as discharges were within permitted limits and enforced according to the provisions of the Clean Water Act (Biggins 1994, p. 4). These water quality requirements were established with the intent to protect all aquatic resources within the State of Alabama and were presumed to be protective of the Alabama sturgeon. However, the Service is currently in consultation with the USEPA to evaluate the protectiveness of criteria approved in USEPA's water quality standards for Alabama sturgeon and other threatened and endangered species and their critical habitats as described in the Memorandum of Agreement our agencies signed in 2001 (66 FR 11201). Other factors that can potentially alter water quality are droughts and periods of low flow, non-point source runoff from adjacent land surfaces (e.g., excessive amounts of nutrients, pesticides, and sediment), and random spills or unregulated discharge events. This could be particularly harmful during drought conditions when flows are depressed and pollutants are more concentrated. Therefore, adequate water quality is essential for normal behavior, growth, and viability during all life stages of the sturgeon, including egg development and hatching, and larval and juvenile development.

The Alabama sturgeon is believed to reach sexual maturity between 5 and 7 years of age. Spawning frequency of both sexes is likely influenced by food supply and fish condition, and may occur every 1 to 3 years. Similar to other river sturgeon, the Alabama sturgeon is believed to migrate upstream during the late winter and spring to spawn. These movements are likely extensive and cover long distances.

The capture of 12 individuals (including several gravid females) during a single collection trip near the mouth of the Cahaba River on March 21, 1969, suggests directional movements during the spawning season (Williams and Clemmer 1991, p. 27). Gravid females with ripe eggs have also been collected during late March, April, and early May, which may indicate a prolonged spring spawning or yearly variations in the occurrence of preferred spawning temperatures. Actual timing of spawning during this period may also vary depending on water temperature and river discharge. All sturgeon species produce eggs that are adhesive and require a current for proper development. Although specific locations at which eggs have been deposited have not been identified for the Alabama sturgeon, they are presumably similar to those of other river sturgeons, where eggs are deposited on hard bottom substrates such as bedrock, armored gravel, or channel training works in deep water areas, and possibly in some larger tributaries, such as the Cahaba River (Burke and Ramsey 1985, p. 53).

Although no information about larval development exists for the Alabama sturgeon, we assume that the Alabama sturgeon may have similar needs as other river sturgeons which require highly oxygenated, long stretches of free-flowing water for development. The larvae are planktonic, drifting with river currents for 12 to 13 days after hatching, and exhibit a swim-up and drift behavior while floating in currents (Kynard et al. 2007, p. 365). Research indicates that pallid sturgeon larvae can drift more than 200 kilometers (km) (125 miles (mi)) during the first 11 days of the larval life stage, depending on water velocities, before settling to the benthic environment (Braaten and Fuller 2007, p. 1). It is unclear, at present, whether Alabama sturgeon require distances comparable to those exhibited by pallid sturgeon, but the life history strategy is thought to be the same. A further reduction in the distance of free-flowing habitat currently available would likely be detrimental to the sturgeon.

Flows in the Mobile River Basin have been substantially altered from natural conditions due to the construction and operation of the large number of impoundments. Additionally, the river's temperature, biogeochemical processes that would have occurred in the absence of the dams, and pollution assimilation capabilities have also been altered. Flowing water provides a means for transporting nutrients and food items, moderating water temperatures and dissolved oxygen levels, and diluting pollutants, as well as transporting and suspending developing sturgeon eggs and larvae.

The quality of water, which comprises the sturgeon's chemical habitat, is directly related to the volume of water present in the river. It affects sturgeon behavior, growth, and viability in all life stages. In 1972, prior to the listing of the sturgeon, a 4,640 cubic-feet-per-second flow requirement in the Alabama River at Montgomery was established. This flow, which is approximately the 7Q10 (a measure of lowest 7-day flow measured over a 10-year period) for this section of the river, is believed to be protective of the Alabama sturgeon. We believe this flow would result in the magnitude, frequency, duration, and seasonality of discharge over time that is necessary to maintain all life stages of the species in the riverine environment, including migration, breeding site selection, resting, larval development, protection of cool water refuges during low flow periods, as well as sufficient velocities to inhibit excessive sedimentation.

Aquatic life, including fish, requires acceptable levels of dissolved oxygen. The type of organism and its life stage determine the level of oxygen required. Generally, among the fish, cold water species are the most sensitive, with young life forms being most critical. Temperature, another water quality parameter, is related to dissolved oxygen. The amount of dissolved oxygen that is present in water (the saturation level) depends upon water temperature. As the water temperature increases, the saturated dissolved oxygen level decreases. The more oxygen there is in the water, the greater the assimilative capacity (ability to consume organic wastes with minimal impact) of that water (Pitt 2000, pp. 6-7). Biochemical oxygen demand (BOD) is the oxygen that would be required to stabilize the waste after its discharge into a body of water. Wastewater discharges that have a high BOD will have a much greater detrimental effect on stream dissolved oxygen during critical summer months than they would during colder months. Summer months also have lower stream flow rates, which worsens the problem by further reducing the water's assimilative capacity (Pitt 2000, pp. 6-7). Flows should be sufficient to ensure at least 4 milligrams per liter of dissolved oxygen during low flow periods based on the State water quality standards.

During 2007 and 2008, the Alabama River Basin experienced the worst drought ever recorded. Although this drought is currently recognized as the worst drought in modern history, some researchers believe that it may not have been that unusual (B. Erhardt, U.S. Army Corps of Engineers Meteorologist, pers. comm. 2008). Using bald cypress (a long-lived species) growth rings as an indication, the 2007-08 hydrologic period may have actually been more normal over the last 1000 years than conditions experienced over the last 40 years (which may have been exceptionally wet). Therefore, considering that sturgeon species have survived a range of hydrologic conditions over the years, we believe sturgeon are adapted to these periodic low flow conditions. Although the sturgeon we are currently tracking survived the 2007-08 drought, we do not believe that the Alabama sturgeon is adapted to survive extended drought periods where water quality is compromised by excessive discharges that the river is unable to assimilate. More specifically, as described above, low-flow conditions affect the chemical environment occupied by the fish and extended low-flow conditions coupled with higher pollutant levels would likely result in behavior changes within all life stages, but could be particularly detrimental to early life stages (e.g., eggs and larvae).

Stable river bottoms also are required by the sturgeon. The presence of stable river bottoms has been associated with the recent and historical captures of sturgeon in the Alabama and Tombigbee Rivers. Hartfield and Garner (1998, p. 6) documented the presence of stable substrates interspersed between dredge and disposal sites in the lower Alabama River. These included areas with stable sand and gravel river bottoms, and bedrock walls. The presence of mussel beds and a diverse and dense insect community provide an indication that channel bottoms are relatively stable (Hartfield and Garner 1998, p. 6). As mentioned above, the preferred diet of the sturgeon is aquatic invertebrates; therefore, the presence of mussel beds may be an important indicator of suitable sturgeon feeding habitat. This is consistent with the data that are currently being collected from the sturgeon that was released and tracked in 2007. This fish has remained in the vicinity of well-known mussel beds on the lower Alabama River since its release.

Within the geographical area occupied by the Alabama sturgeon at the time of listing, we must identify the PCEs that may require special management considerations or protections.

Based on the above needs and our current knowledge of the life history, biology, and ecology of the species, we have determined that Alabama sturgeon's PCEs are:

1. A range of flows with a minimum 7-day flow of 4,640 cubic feet per second during normal hydrologic conditions, measured in the Alabama River at Montgomery.

2. River channel with stable sand and gravel river bottoms, and bedrock walls, including associated mussel beds.

3. Limestone outcrops and cut limestone banks, large gravel or cobble such as that found around channel training devices, and bedrock channel walls that provide riverine spawning sites with substrates suitable for egg deposition and development.

4. Long sections of free-flowing water to allow spawning migrations and development of eggs and larvae.

5. Water temperature not exceeding 90 °Fahrenheit (32 °Celsius), dissolved oxygen content over 4 milligrams per liter, and pH (a measure of acidity) within the range of 6.0 to 8.5.

With this proposed designation of critical habitat, we intend to conserve the physical and biological features that are essential to the conservation of the species, through the identification of the appropriate quantity and spatial arrangement of the PCEs sufficient to support the life history functions of the species. The critical habitat unit proposed for designation contains all of the PCEs and supports multiple life processes.

When designating critical habitat, we assess whether the occupied areas contain the physical or biological features essential to the conservation of the species, and whether these features may require special management considerations or protection. It is recognized that numerous activities in and adjacent to the unit designated as critical habitat, as described in this proposed rule, may affect one or more of the PCEs found in that unit. These activities include, but are not limited to, those listed in the Application of the “Adverse Modification” Standard section as activities that may destroy or adversely modify critical habitat. We summarize here the primary threats to the physical and biological features essential to the conservation of the species.

Water quality, as discussed in the Application of the “Adverse Modification” Standard section, can influence all life stages of the sturgeon. Water pollution and changes in water quality can originate from either non-point or point source discharges. Non-point source pollution is ubiquitous in the Mobile Basin and can originate from a variety of land use practices (such as livestock grazing, row crop farming, silvicultural, and residential development). The impacts from nearly all non-point source pollutant sources can be managed by implementing the appropriate best management practices. This may include creation and maintenance of riparian buffers, and control of soil loss and runoff from adjacent lands. Point source pollution typically originates from industrial and municipal discharges, but may include any discharge that originates from a single point. Point source pollution can be managed by ensuring that NPDES permitted discharges are within compliance at all times. This requires proper water quality monitoring and record keeping, and ensuring that enough flow is present in the river to assimilate the volume of material that is being discharged.

The Service should be consulted with for disturbances to areas upstream of those known to support sturgeon, including perennial streams that may provide critical thermal refuges to the sturgeon at the interface with the main channel, especially during times when river flows are experiencing abnormally low levels (i.e., during droughts). Therefore, prior to channel-disturbing activities, these areas should be identified and precautions should be taken to ensure that the integrity of these areas is maintained. Minimizing the effects of navigational dredging and channelization (past evidence of which can be seen throughout the historical range of the sturgeon) can be accomplished by avoiding the removal of consolidated bed material and rock walls, and consulting with the Service on the proper disposal areas.

The Alabama sturgeon is extremely rare. Despite extensive and intensive efforts in the decade prior to its listing, only eight Alabama sturgeon were captured, or reported captured and released. All river sturgeons are migratory and may migrate hundreds of kilometers to spawn, and newly hatched larvae may drift hundreds of kilometers before settling. Therefore, connectivity of spawning, juvenile, and adult feeding and developmental habitats is necessary for the conservation of the species.

We began our analysis by evaluating the Alabama sturgeon in the context of its distribution throughout the historical range to determine what portion of the range must be included to ensure conservation of the species. We considered several factors in this evaluation: (1) Inclusion of reaches that provide the highest likelihood of egg and juvenile development, (2) inclusion of reaches that contain suitable spawning habitat, and (3) inclusion of areas that provide protection of the species during low flow periods and other catastrophic events.

The historical range of the Alabama sturgeon included nearly every major basin in the Mobile River basin downstream of the Fall Line, comprising nearly 1,600 km (1,000 mi) of riverine habitat in the Mobile River Basin in Alabama and Mississippi. There are records of Alabama sturgeon from nearly all the major rivers in the Mobile River Basin below the Fall Line, including the Black Warrior, Tombigbee, Alabama, Coosa, Tallapoosa, Mobile, Tensaw, and Cahaba Rivers (Burke and Ramsey 1985, p. 1). However, over the last century, the species has disappeared from at least 85 percent of its historical range, and since the 1960s has experienced a significant decline in the remaining range.

Recent collections (since 1990) of the Alabama sturgeon are confined to the lower Alabama River from its confluence with the Tombigbee River upstream to R.F. Henry Lock and Dam, including the lower Cahaba River (Rider and Hartfield 2007, p. 492). The entire historical range of the Alabama sturgeon is now controlled by a series of more than 25 large locks or dams. These man-made structures have resulted in a series of impoundments that are interspersed with free-flowing reaches of varying lengths. Within the Alabama sturgeon's historical range there are three dams on the Alabama River (completed between 1969 and 1971), two on the Black Warrior River (completed by 1971), and six on the Tombigbee River (completed between 1955 and 1985). These 11 dams alone have impounded and fragmented more than 970 km (583 mi) of riverine habitat once occupied by sturgeon. Prior to construction of these structures, sturgeon could move freely between feeding areas, and from feeding areas to sites that were suitable for spawning and development of eggs and larvae.

The locks and dams that impound the river constitute barriers to sturgeon passage. Although fish species that occupy the middle of the water column (e.g., shad, catfishes, paddlefish) could, and do, pass through the locks while they are being operated, there is no evidence to suggest that sturgeon pass through the lock chambers during normal lockages. Most adult sturgeons, including the Alabama sturgeon, are benthic (bottom-dwelling) cruisers, and are not likely to move up in the water column to scale physical hurdles (Cooke et al. 2002, p. 108). The lock chambers at Millers Ferry and Claiborne Locks and Dams have upper and lower sills which form a rather large hurdle (about 30 feet above the river floor at the upper end of Miller Ferry) for sturgeon moving upstream and downstream.

With migration routes impeded, isolated subpopulations of Alabama sturgeon are unable to successfully recruit adequate numbers to replenish the population. Reduced numbers of recruited sturgeon and surviving adult fish can become more vulnerable to localized declines in water and habitat quality caused by hydropower releases, local riverine and land management practices, or by polluted discharges. It is unlikely that Alabama sturgeon habitat and life cycle requirements can be met in long stretches of low flow, such as those that exist in the impounded areas of the river, where decreased flows typically cause silt and other fine sediments to accumulate over bottom habitats, creating unsuitable conditions for spawning, feeding, and larval growth and development.

The Alabama sturgeon is considered extirpated from the upper Alabama, Black Warrior, Tombigbee, Coosa, Tallapoosa, Mobile, and Tensaw Rivers. The Upper Alabama is isolated by Robert F. Henry Lock and Dam, and this reach of the river is essentially impounded to the confluence of the Coosa and Tallapoosa Rivers, and does not contain appropriate habitat for the conservation of the Alabama sturgeon.

Sturgeon have not been collected from the Black Warrior, Coosa, Tallapoosa or Tombigbee Rivers in more than 30 years. With the exception of the extreme lower Tombigbee River, all of these areas are isolated from currently occupied river reaches and their riverine habitats are impounded and highly fragmented by multiple large river dams. Although some isolated areas within these drainages may contain some of the appropriate habitat features for Alabama sturgeon, their limited extent and the lack of continuity or accessibility to other habitats limits their value to the species.

The Mobile, Tensaw, and lower Tombigbee Rivers are currently accessible to Alabama sturgeon; however, there have been no confirmed collections of the species in more than 20 years. In addition, the natural hydrograph of the lower Mobile Basin has been radically altered by multiple navigation and hydropower dams on the Tombigbee River, and the flows are seasonally highly variable. These areas may be occasionally used or visited by subadult or adult Alabama sturgeon; however, there is no recent evidence that this is occurring and little historical evidence of such use. Although some habitat features occur in these river reaches, their value in conservation of the species is not known.

At the time of listing, we considered the Alabama River from south of Miller's Ferry Lock and Dam to the confluence of the Tombigbee River to be occupied. Shortly after publication of the listing rule, an Alabama sturgeon was captured and released at river mile 8.5 in the Cahaba River. This capture of an adult sturgeon indicated that this area also was occupied at the time of listing, given that the fish could not have reached this area from other sections of the river due to the lock and dam arrangement (see the Riverine Flows and Channel Stability section), and would have been present at the time the rule was published in the Federal Register . Given the fish's proximity to the mouth of the Cahaba River and the lack of barriers with the Alabama River section located between R.F. Henry Lock and Dam and the Millers Ferry Lock and Dam, we believe the fish likely to use all of these areas, and, therefore, consider them occupied at the time of listing. There is some evidence of past upstream spawning runs in the Cahaba River as well (Williams and Clemmer 1991, p. 27). Based on historical information and recent collections, we consider all of the following areas to be currently occupied: The Alabama River from R.F. Henry Lock and Dam downstream to the confluence of the Tombigbee River, and the Cahaba River from its confluence with the Alabama River upstream to U.S. Highway 82 which is close to the Fall Line at Centreville, Alabama. Given the lack of appropriate habitat elsewhere within the historical range, we conclude that this proposed designation should include all currently occupied habitat.

Once we determined that the proper scale of the proposed critical habitat designation should cover the area currently occupied by the species, we assessed the critical life history components of Alabama sturgeon as they relate to habitat. Alabama sturgeon use the rivers for spawning, larval and juvenile feeding and development, adult resting, feeding, and staging, and to move between the areas that support these components. Therefore, all areas meeting these requirements were considered for inclusion.

We then investigated the habitat types that support these life history components and where these habitat areas are located. We evaluated empirical data (including that gathered from recent radiotelemetry), recent channel bathymetry data (collected by the U.S. Army Corps of Engineers), as well as published and unpublished literature. These habitat components are described in the Primary Constituent Elements section of this proposed rule.

To determine which areas should be designated as critical habitat, we then evaluated where the necessary physical and biological features of Alabama sturgeon habitat occur within the currently occupied habitat. Detailed location data are included in the unit description in the Proposed Critical Habitat Designation section of this proposed rule. We have determined that these areas occur from the Alabama River, at its confluence with the Tombigbee River, upstream to R.F. Henry Lock and Dam. This also includes the Cahaba River upstream to U.S. Highway 82 near the Fall Line in Bibb County. All of these areas support one or more of the PCEs and are accessible to sturgeon (i.e., not entirely blocked by dams). All life stages are associated with flowing waters and other features characteristic of free-flowing riverine habitats. Nearly the entire length of the Alabama and Cahaba River currently meet these requirements. This area is being proposed as critical habitat to ensure adequate protection of spawning sites, habitat needed for juvenile development, and movement of adult sturgeon to and from spawning areas.

When determining proposed critical habitat boundaries within this proposed rule, we made every effort to avoid including developed areas such as waterways covered by buildings, docks, dams, and other structures because such waterways lack PCEs for Alabama sturgeon. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developments. Any such areas inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, a Federal action involving these areas would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action may affect adjacent critical habitat.

We are proposing to designate one contiguous section of the Alabama River and a portion of the lower Cahaba River as one critical habitat unit for Alabama sturgeon. The areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Alabama sturgeon. The single unit we propose as critical habitat is the Alabama River from its confluence with the Tombigbee River, Clarke and Baldwin Counties, Alabama, upstream to R.F. Henry Lock and Dam, Autauga and Lowndes Counties, Alabama; and the Cahaba River from its confluence with the Alabama River upstream to U.S. Highway 82 near the Fall Line in Bibb County, Alabama.

Following review of all areas within the range of the species, we have determined that the proposed critical habitat area meets the definition of critical habitat.

Table 1 shows the occupied unit, land ownership and approximate area.

Below, we present a brief description of the unit and reasons why it meets the definition of critical habitat for the Alabama sturgeon.

The critical habitat unit encompasses 524 km (326 mi) of river channel. The portion of river channel in the Alabama River extends 394 km (245 mi) from its confluence with the Tombigbee River, Baldwin and Clarke Counties, Alabama, upstream to R.F. Henry Lock and Dam, Autauga and Lowndes Counties, Alabama; and the portion of river channel in the Cahaba River extends 130 km (81 mi) from its confluence with the Alabama River, Dallas County, Alabama, upstream to U.S. Highway 82, Bibb County, Alabama. The Alabama and Cahaba Rivers are the last known areas that still support the sturgeon, both of which were occupied at the time of listing. This was recently confirmed by the 2007 collection of an individual from the Alabama River below Claiborne Lock and Dam, and the 2000 collection of an individual from the lower Cahaba River (ADCNR pers. comm. 2007). Although the Alabama River, within this unit, contains two physical barriers (Claiborne and Millers Ferry Locks and Dams), it supports the PCEs to sustain this extremely rare fish. The single critical habitat unit includes the channel of the rivers and streams listed between the ordinary high water mark on each bank, which is defined in 33 CFR 329.11 as “the line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank; shelving; changes in the character of the soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.” The distances between landmarks marking the upstream and downstream boundaries of the unit are given in kilometers and equivalent miles, as measured by tracing the thalweg (a line connecting the lowest points of successive cross sections) of the stream, not the straight-line distance. River miles referenced in this rule were taken from a Corps of Engineers 1985 stream mileage table.

The river channel within the entire unit is owned by the State of Alabama, and the vast majority of adjacent lands are under private ownership, with the exception of a portion of the Cahaba River that includes Talladega National Forest (Oakmulgee Division). Although the Oakmulgee Division encompasses a total of 63,483.7 hectares (ha) (156,871 acres (ac)), there are only about 9,951.6 ha (24,591 ac) that are directly adjacent to the Cahaba River. The Barton Beach Reserve, a small tract owned by The Nature Conservancy, encompasses 45.3 ha (112 ac) and covers approximately 1,150 meters (m) (3,773 ft) along the Cahaba River. This unit meets the definition of critical habitat based on the discussion above and contains all PCEs. This unit was known to be occupied at the time of listing and is currently occupied. Special management of the PCEs for the Alabama sturgeon and its habitat may be required for the following threats: low flow conditions, detrimental changes in water quality, reduction in the amount of free-flowing habitat, and detrimental changes to the morphology or stability of the river channel.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify designated critical habitat. Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service , 378 F.3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife Service et al. , 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the PCEs to be functionally established) to serve its intended conservation role for the species.

Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)). The conservation recommendations in a conference report are advisory.

If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that are likely to adversely affect listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. We define “Reasonable and Prudent Alternatives” at 50 CFR 402.02 as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

When we issue a biological opinion concluding that a project is not likely to jeopardize a listed species or adversely modify critical habitat, but may result in incidental take of listed animals, we provide an incidental take statement that specifies the impact of such incidental taking on the species. We then define “Reasonable and Prudent Measures” considered necessary or appropriate to minimize the impact of such taking. Reasonable and prudent measures are binding measures the action agency must implement to receive an exemption to the prohibition against take contained in section 9 of the Act. These reasonable and prudent measures are implemented through specific “Terms and Conditions” that must be followed by the action agency or passed along by the action agency as binding conditions to an applicant. Reasonable and prudent measures, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration, or timing of the action under consultation and may involve only minor changes (50 CFR 402.14). The Service may provide the action agency with additional conservation recommendations, which are advisory and not intended to carry binding legal force.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

Federal activities that may affect Alabama sturgeon or its designated critical habitat will require section 7(a)(2) consultation under the Act. Activities on State, Tribal, local or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from us under section 10(a)(1)(B) of the Act) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) are examples of agency actions that may be subject to the section 7(a)(2) consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local or private lands that are not federally funded, authorized, or permitted, do not require section 7(a)(2) consultations.

The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species, or would retain its current ability for the primary constituent elements to be functionally established. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for Alabama sturgeon. Generally, the conservation role of Alabama sturgeon critical habitat unit is to support the various life-history needs of the species.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.

Activities that, when carried out, funded, or authorized by a Federal agency, may adversely affect critical habitat and, therefore, should result in consultation for Alabama sturgeon include, but are not limited to the following (please see Special Management Considerations or Protection section for a more detailed discussion on the impacts of these actions to the listed species):

(1) Actions that would significantly alter the existing flow regime to the point at which the habitat could no longer sustain normal behavior and promote species recovery. Such activities could include, but are not limited to, construction and operation of dams, water withdrawals, and channelization. These activities could eliminate or reduce spawning habitats, impair the development of eggs and larvae, impede or eliminate normal migration patterns, reduce the ability of the river to adequately assimilate pollution, and compromise the integrity and utility of cool water refuges (perennial tributaries). In addition, flows less than 4,640 cubic feet per second, as determined by the U.S. Army Corps of Engineers at Montgomery, would need to be evaluated on an individual basis to determine if they may affect the critical habitat, and conclusions could be dependent, in part, on intervening flows (e.g., Catoma Creek, Cahaba River), water temperature, and dissolved oxygen content in the Alabama River downstream of Montgomery. Dependent on these factors and conditions in the river at the time of the consultation, a Not Likely to Adversely Affect Determination could still be possible.

(2) Actions that would significantly alter the morphology and stability of the river channel. Such activities would include, but are not limited to, dredging and mining of consolidated bed material, impoundments, road and bridge construction, and destruction of riparian vegetation. These activities could eliminate suitable substrates for egg deposition and development, increase turbidity, and initiate erosion along the banks, which could increase water temperatures and reduce the width of the riparian zone.

(3) Actions that would significantly decrease the amount of currently available free-flowing habitat. Such activities would include, but are not limited to, construction and operation of dams, water withdrawals, and diversions. These activities could further minimize the currently available length of free-flowing habitat to support spawning migrations and development of eggs and larvae.

(4) Actions that would significantly alter water chemistry beyond what is required in the State of Alabama water quality standards. Such activities would include, but are not limited to, the discharge of chemicals, biological pollutants, nutrients, and other toxic substances that originate from non-point or point source discharges. These substances could directly, or through accumulation in tissue, impair sturgeon behavior, reproduction, and growth.

We consider the unit proposed as critical habitat to contain features essential to the conservation of Alabama sturgeon. The unit is within the geographic range of the species, it was occupied by the species at the time of listing, and it is currently occupied. Federal agencies already consult with us on activities that may affect the species, to ensure that their actions do not jeopardize the continued existence of Alabama sturgeon.

Following review of all areas within the range of the species, we have determined that the proposed critical habitat area meets the definition of critical habitat.

The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”

There are no Department of Defense lands with a completed integrated natural resources management plan within the proposed critical habitat designation.

Section 4(b)(2) of the Act states that the Secretary must designate and revise critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the legislative history is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

Under section 4(b)(2) of the Act, in considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If based on this analysis, we make this determination, then we can exclude the area only if such exclusion would not result in the extinction of the species.

In the following sections, we address a number of general issues that are relevant to the exclusions we are considering. In addition, we are conducting an economic analysis of the impacts of the proposed critical habitat designation and related factors, which will be available for public review and comment when it is complete. Based on public comment on that document, the proposed designation itself, and the information in the final economic analysis, the Secretary may exclude from critical habitat additional areas beyond those identified in this assessment under the provisions of section 4(b)(2) of the Act. This is also addressed in our implementing regulations at 50 CFR 424.19.

Under section 4(b)(2) of the Act, we must consider economic impacts. We also consider a number of factors in a section 4(b)(2) analysis. For example, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. We also consider whether landowners having proposed critical habitat on their lands have developed any conservation plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any Tribal issues, and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social or other impacts that might occur because of the designation.

In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the Alabama sturgeon are not owned or managed by the Department of Defense, there are currently no HCPs for the Alabama sturgeon, and the proposed designation does not include any Tribal lands or trust resources.

We anticipate no impact to national security, Tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Based on the best available information, we believe that this unit contains the features essential to the species. As such, we have considered but not excluded any lands from this proposed designation. However, during the development of a final designation, we will be considering economic impacts, public comments, and other new information, and areas may be excluded from the final critical habitat designation under section 4(b)(2) and our implementing regulations at 50 CFR 424.19.

Section 4(b)(2) of the Act allows the Secretary to exclude areas from critical habitat for economic reasons if the Secretary determines that the benefits of such exclusion exceed the benefits of designating the area as critical habitat. However, this exclusion cannot occur if it will result in the extinction of the species concerned.

We are preparing an analysis of the economic impacts of proposing critical habitat for Alabama sturgeon. We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek public review and comment. At that time, copies of the draft economic analysis will be available for downloading from the Internet at the Federal eRulemaking Portal: http://www.regulations.gov , or by contacting the Alabama Ecological Services Field Office directly (see FOR FURTHER INFORMATION CONTACT ). We may exclude areas from the final rule based on the information in the economic analysis.

In accordance with our joint policy published in the Federal Register on July 1, 1994 (59 FR 34270), we are obtaining the expert opinions of at least three appropriate independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses. We have invited these peer reviewers to comment during this public comment period on our specific assumptions and conclusions in this proposed designation of critical habitat.

We will consider all comments and information we receive during this comment period on this proposed rule during our preparation of a final determination. Accordingly, our final decision may differ from this proposal.

The Act provides for one or more public hearings on this proposal, if we receive any requests for hearings. We must receive your request for a public hearing within 45 days after the date of this Federal Register publication. Send your request to the person named in the FOR FURTHER INFORMATION CONTACT section. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the first hearing.

The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under Executive Order (E.O.) 12866. OMB bases its determination upon the following four criteria:

(1) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

(2) Whether the rule will create inconsistencies with other Federal agencies' actions.

(3) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

(4) Whether the rule raises novel legal or policy issues.

At this time, we lack the available economic information necessary to determine whether the rule would have an annual effect on the economy of $100 million or more or affect the economy in a material way.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

At this time, we lack the available economic information necessary to provide an adequate factual basis for the required RFA finding. Therefore, we defer the RFA finding until completion of the draft economic analysis prepared under section 4(b)(2) of the Act and E.O. 12866. This draft economic analysis will provide the required factual basis for the RFA finding. Upon completion of the draft economic analysis, we will announce availability of the draft economic analysis of the proposed designation in the Federal Register and reopen the public comment period for the proposed designation. We will include with this announcement, as appropriate, an initial regulatory flexibility analysis or a certification that the rule will not have a significant economic impact on a substantial number of small entities accompanied by the factual basis for that determination. We have concluded that deferring the RFA finding until completion of the draft economic analysis is necessary to meet the purposes and requirements of the RFA. Deferring the RFA finding in this manner will ensure that we make a sufficiently informed determination based on adequate economic information and provide the necessary opportunity for public comment.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following findings:

(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or [T]ribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and [T]ribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this rule will significantly or uniquely affect small governments because the lands being proposed for critical habitat designation are river bottoms owned by the State of Alabama and do not fit the definition of “small governmental jurisdiction.” Therefore, a Small Government Agency Plan is not required. However, as we conduct our economic analysis, we will further evaluate this issue and revise this assessment if appropriate.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for Alabama sturgeon in a takings implications assessment. The takings implications assessment concludes that this designation of critical habitat for Alabama sturgeon does not pose significant takings implications for lands within or affected by the designation.

In accordance with E.O. 13132, this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in Alabama. The designation of critical habitat in areas currently occupied by the Alabama sturgeon imposes no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments because the areas that contain physical and biological features essential to the conservation of the species are more clearly defined, and the primary constituent elements necessary to support the life processes of the species are specifically identified. This information does not alter where and what federally-sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur).

In accordance with E.O. 12988 (Civil Justice Reform), it has been determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. This proposed rule uses standard property descriptions and identifies physical and biological features essential to the conservation of the species within the designated areas to assist the public in understanding the habitat needs of the Alabama sturgeon.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq. ) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This assertion was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt , 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, and Secretarial Order 3206, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that there are no Tribal lands that meet the definition of critical habitat for Alabama sturgeon. Therefore, we have not proposed designation of critical habitat for Alabama sturgeon on Tribal lands.

On May 18, 2001, the President issued an Executive Order (E.O. 13211; Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. There are currently two hydroelectric dams (Robert F. Henry and Millers Ferry Locks and Dams) located on portions of the rivers under consideration for designation of critical habitat. Both Robert F. Henry and Millers Ferry Locks and Dams are located on the Alabama River and are owned and operated by the U.S. Army Corps of Engineers, and have total generating capacities of 68 and 75 megawatts, respectively. Hydroelectric production was likely impacted by low flows resulting from recent drought conditions; however, under normal hydrologic conditions, where flows at Montgomery equal a 7-day average of 4,640 cubic feet per second, flows would not be altered by this designation of critical habitat. With designation of critical habitat, the Service's ongoing consultation and future consultations with the U.S. Army Corps of Engineers on their management of the Mobile River Basin reservoirs regarding the Alabama sturgeon will require assessment of potential impacts to critical habitat. However, these consultations were already required because of the presence of Alabama sturgeon in the rivers that are being proposed for designation. Flow recommendations for the Alabama sturgeon remain the same as the levels we consulted on prior to the designation. Consequently, we do not expect this proposed rule to designate critical habitat for Alabama sturgeon to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.

To obtain a complete list of all references we cited in this rulemaking, contact the Field Supervisor, Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this package are the staff of the Alabama Field Office.

Accordingly, we propose to amend Part 17, Subchapter B of Chapter I, Title 50 of the Code of Federal Regulations, as set forth below: